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The Source of Jus Cogens Obligations: How Legal Positivism Copes with Peremptory International Law

Linderfalk, Ulf LU (2013) In Nordic Journal of International Law 82(3). p.369-389
Abstract
If legal positivists wish to sustain their account of the international legal system, arguably, they have yet to explain how jus cogens obligations can derive from the usual norm-creating processes recognized by international law. This article provides such an explanation exactly. The explanation builds on the distinction between first order rules of jus cogens (commanding or prohibiting some certain action) and second order rules of the jus cogens regime (specifying the legal consequences ensuing from the postulated superiority of jus cogens over ordinary international law). As argued in this essay, the jus cogens status of a rule of law (R) derives from the existence of the second order rules of the jus cogens regime and from the... (More)
If legal positivists wish to sustain their account of the international legal system, arguably, they have yet to explain how jus cogens obligations can derive from the usual norm-creating processes recognized by international law. This article provides such an explanation exactly. The explanation builds on the distinction between first order rules of jus cogens (commanding or prohibiting some certain action) and second order rules of the jus cogens regime (specifying the legal consequences ensuing from the postulated superiority of jus cogens over ordinary international law). As argued in this essay, the jus cogens status of a rule of law (R) derives from the existence of the second order rules of the jus cogens regime and from the application of those rules to R. Consequently, the explanation of the source of jus cogens obligations lies in the source of the second order rules, rather than in the source of the first order rules themselves. The second order rules are general customary international law, why this must also be the source of jus cogens obligations. This essay ends by inquiring into the implications of this analysis for the concept of jus cogens and for international legal theory in general. (Less)
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organization
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Contribution to journal
publication status
published
subject
keywords
folkrätt, public international law
in
Nordic Journal of International Law
volume
82
issue
3
pages
369 - 389
publisher
Brill Academic Publishers
external identifiers
  • scopus:84885623210
ISSN
0902-7351
language
English
LU publication?
yes
additional info
The article is 21 pages long. It was submitted for publication review in September 2010.
id
8eeb9be9-ceeb-43db-ba53-292ccbc38ca5 (old id 1686676)
alternative location
https://brill.com/view/journals/nord/82/3/article-p369_2.xml
date added to LUP
2016-04-04 09:36:54
date last changed
2019-11-20 04:05:33
@article{8eeb9be9-ceeb-43db-ba53-292ccbc38ca5,
  abstract     = {If legal positivists wish to sustain their account of the international legal system, arguably, they have yet to explain how jus cogens obligations can derive from the usual norm-creating processes recognized by international law. This article provides such an explanation exactly. The explanation builds on the distinction between first order rules of jus cogens (commanding or prohibiting some certain action) and second order rules of the jus cogens regime (specifying the legal consequences ensuing from the postulated superiority of jus cogens over ordinary international law). As argued in this essay, the jus cogens status of a rule of law (R) derives from the existence of the second order rules of the jus cogens regime and from the application of those rules to R. Consequently, the explanation of the source of jus cogens obligations lies in the source of the second order rules, rather than in the source of the first order rules themselves. The second order rules are general customary international law, why this must also be the source of jus cogens obligations. This essay ends by inquiring into the implications of this analysis for the concept of jus cogens and for international legal theory in general.},
  author       = {Linderfalk, Ulf},
  issn         = {0902-7351},
  language     = {eng},
  number       = {3},
  pages        = {369--389},
  publisher    = {Brill Academic Publishers},
  series       = {Nordic Journal of International Law},
  title        = {The Source of Jus Cogens Obligations: How Legal Positivism Copes with Peremptory International Law},
  url          = {https://brill.com/view/journals/nord/82/3/article-p369_2.xml},
  volume       = {82},
  year         = {2013},
}