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The Creation of Jus Cogens: : Making Sense of Article 53 of the Vienna Convention

Linderfalk, Ulf LU (2011) In Zeitschrift für ausländisches öffentliches Recht und Völkerrecht : Heidelberg journal of international law 71. p.359-378
Abstract
This essay provides an analysis of the creation of jus cogens. The analysis
makes intelligible the definition of jus cogens provided in Art. 53 of the 1969
Vienna Convention on the Law of Treaties. It has been said repeatedly
about this definition that it is circular. If a jus cogens status is conferred on a
rule of law because the international community of states accepts and recognizes this rule as non-derogable and modifiable only by the creation of a
new norm of jus cogens, then the definition assumes what remains to be established: the creation of jus cogens. As shown in this essay, this criticism
builds on wrongful assumptions. It assumes that Art. 53 explains the creation of jus cogens, which it does not; it... (More)
This essay provides an analysis of the creation of jus cogens. The analysis
makes intelligible the definition of jus cogens provided in Art. 53 of the 1969
Vienna Convention on the Law of Treaties. It has been said repeatedly
about this definition that it is circular. If a jus cogens status is conferred on a
rule of law because the international community of states accepts and recognizes this rule as non-derogable and modifiable only by the creation of a
new norm of jus cogens, then the definition assumes what remains to be established: the creation of jus cogens. As shown in this essay, this criticism
builds on wrongful assumptions. It assumes that Art. 53 explains the creation of jus cogens, which it does not; it explains only its existence. A full explanation of the creation of jus cogens requires further elaboration. According to the proposition argued in this essay, jus cogens obligations derive
from the usual processes creating ordinary customary international law. (Less)
Please use this url to cite or link to this publication:
author
organization
publishing date
type
Contribution to journal
publication status
published
subject
keywords
Public international law, Folkrätt
in
Zeitschrift für ausländisches öffentliches Recht und Völkerrecht : Heidelberg journal of international law
volume
71
pages
359 - 378
publisher
C.H. Beck
ISSN
0044-2348
language
English
LU publication?
yes
additional info
The article is 19 pages long. It was submitted for publication review on September 2010.
id
73ccd339-e029-47e5-a08a-c6d7112a7bab (old id 1686669)
alternative location
http://www.zaoerv.de/71_2011/71_2011_2_a_359_378.pdf
date added to LUP
2016-04-04 13:25:00
date last changed
2020-04-07 10:47:29
@article{73ccd339-e029-47e5-a08a-c6d7112a7bab,
  abstract     = {This essay provides an analysis of the creation of jus cogens. The analysis<br/>makes intelligible the definition of jus cogens provided in Art. 53 of the 1969<br/>Vienna Convention on the Law of Treaties. It has been said repeatedly<br/>about this definition that it is circular. If a jus cogens status is conferred on a<br/>rule of law because the international community of states accepts and recognizes this rule as non-derogable and modifiable only by the creation of a<br/>new norm of jus cogens, then the definition assumes what remains to be established: the creation of jus cogens. As shown in this essay, this criticism<br/>builds on wrongful assumptions. It assumes that Art. 53 explains the creation of jus cogens, which it does not; it explains only its existence. A full explanation of the creation of jus cogens requires further elaboration. According to the proposition argued in this essay, jus cogens obligations derive<br/>from the usual processes creating ordinary customary international law.},
  author       = {Linderfalk, Ulf},
  issn         = {0044-2348},
  language     = {eng},
  pages        = {359--378},
  publisher    = {C.H. Beck},
  series       = {Zeitschrift für ausländisches öffentliches Recht und Völkerrecht : Heidelberg journal of international law},
  title        = {The Creation of Jus Cogens: : Making Sense of Article 53 of the Vienna Convention},
  url          = {http://www.zaoerv.de/71_2011/71_2011_2_a_359_378.pdf},
  volume       = {71},
  year         = {2011},
}