Adil Ahmad Haque
Rutgers Law School; Rutgers Law School
Date Written: August 16, 2022
Abstract
The International Law Commission recently adopted a set of draft conclusions and commentaries on peremptory norms of general international law (jus cogens). It’s quite likely that the ILC’s work will be widely viewed as a definitive restatement of the law in this area. But the conclusions are at best ambiguous about what holds this area of law together. And, on balance, the commentaries tend to favor the view that non-derogability lies at the center of it all, explaining characteristics like hierarchical superiority and universal applicability, as well as consequences like the invalidity of conflicting rules. That’s the view I will reject.
My basic claim will be that peremptory norms—their characteristics, their consequences, and their content—are best explained by their moral function of reflecting and protecting the fundamental values of the international community. In contrast, the formal characteristic of non-derogability is a consequence of this moral function, rather than a basic or fundamental feature. This understanding makes us better positivists, because we better understand what this human artifact is for, how its various features enable it to perform its function, and why the dynamic process through which international law navigates its own uncertainties invites normative argument into legal reasoning. Since peremptory norms underwrite the unity of the international legal order, this understanding places consensus and contestation over fundamental values at the very heart of international law.
Keywords: Peremptory norms, jus cogens, international law
HAQUE, Adil Ahmad. Peremptory Norms and Fundamental Values (August 16, 2022). Rutgers Law School Legal Studies Research Paper Series. Disponível em: https://ssrn.com/abstract=4192022. Acesso em: 29 ago. 2022.
