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What Is So Special about Jus Cogens : On the Distinction between the Ordinary and the Peremptory International Law

Linderfalk, Ulf LU (2012) In International Community Law Review 14. p.3-18
Abstract
What, exactly, is it about jus cogens that distinguishes it from ordinary international law? In answering this question, international lawyers usually resort to the “the Legal-Consequences-as-Criterion Theory”: while ordinary international law can be rebutted or modified in accordance with the duly expressed will of states, jus cogens norms permit no derogation and allow modification only by the creation of a new norm having the same character. In the present essay, this theory is subjected to analysis and assessment. Section 2 inquires into the relationship between the Legal-Consequences-as-Criterion Theory and the general definition of jus cogens reflected in Article 53 of the 1969 Vienna Convention. As argued, Article 53 is entirely... (More)
What, exactly, is it about jus cogens that distinguishes it from ordinary international law? In answering this question, international lawyers usually resort to the “the Legal-Consequences-as-Criterion Theory”: while ordinary international law can be rebutted or modified in accordance with the duly expressed will of states, jus cogens norms permit no derogation and allow modification only by the creation of a new norm having the same character. In the present essay, this theory is subjected to analysis and assessment. Section 2 inquires into the relationship between the Legal-Consequences-as-Criterion Theory and the general definition of jus cogens reflected in Article 53 of the 1969 Vienna Convention. As argued, Article 53 is entirely reliant upon the validity of the Legal-Consequences-as-Criterion Theory. Sections 3 and 4 inquire into the assumptions underlying this same Theory. As argued, the Theory does not provide good reasons for the distinction between jus cogens and ordinary 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
International Community Law Review
volume
14
pages
3 - 18
publisher
Brill
external identifiers
  • scopus:84856849096
ISSN
1871-9732
language
English
LU publication?
yes
additional info
The article is 27 pages long. It was submitted for publication review in September 2010.
id
83aee1b2-b853-4a14-9ba6-008d929b1bc8 (old id 1686678)
alternative location
https://brill.com/view/journals/iclr/14/1/article-p3_2.xml
date added to LUP
2016-04-01 09:50:24
date last changed
2022-10-12 13:08:51
@article{83aee1b2-b853-4a14-9ba6-008d929b1bc8,
  abstract     = {{What, exactly, is it about jus cogens that distinguishes it from ordinary international law? In answering this question, international lawyers usually resort to the “the Legal-Consequences-as-Criterion Theory”: while ordinary international law can be rebutted or modified in accordance with the duly expressed will of states, jus cogens norms permit no derogation and allow modification only by the creation of a new norm having the same character. In the present essay, this theory is subjected to analysis and assessment. Section 2 inquires into the relationship between the Legal-Consequences-as-Criterion Theory and the general definition of jus cogens reflected in Article 53 of the 1969 Vienna Convention. As argued, Article 53 is entirely reliant upon the validity of the Legal-Consequences-as-Criterion Theory. Sections 3 and 4 inquire into the assumptions underlying this same Theory. As argued, the Theory does not provide good reasons for the distinction between jus cogens and ordinary international law.}},
  author       = {{Linderfalk, Ulf}},
  issn         = {{1871-9732}},
  keywords     = {{Public international law; Folkrätt}},
  language     = {{eng}},
  pages        = {{3--18}},
  publisher    = {{Brill}},
  series       = {{International Community Law Review}},
  title        = {{What Is So Special about Jus Cogens : On the Distinction between the Ordinary and the Peremptory International Law}},
  url          = {{https://brill.com/view/journals/iclr/14/1/article-p3_2.xml}},
  volume       = {{14}},
  year         = {{2012}},
}