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Realizing UtopiaThe Future of International Law$
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The Late Antonio Cassese

Print publication date: 2012

Print ISBN-13: 9780199691661

Published to Oxford Scholarship Online: September 2012

DOI: 10.1093/acprof:oso/9780199691661.001.0001

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For an Enhanced Role of Jus Cogens

For an Enhanced Role of Jus Cogens

(p.158) 13 For an Enhanced Role of Jus Cogens
Realizing Utopia

Antonio Cassese

Oxford University Press

There is general consensus on the existence of a string of overarching international legal principles. In addition, there also is a large measure of agreement of the fact that some principles have acquired the special status of jus cogens. Furthermore, there has so far been no objection to the notion that jus cogens has or may have an impact on certain areas of international law other than treaty-making. There is, however, disagreement on: how to determine the birth and force of a peremptory norm; the extent to which such a norm may have a direct or indirect impact on domestic legal orders; and the international judicial remedies available in case of dispute on the existence and scope of a peremptory norm. These are three areas where some progress could be achieved. For the first point, the determination of the existence of a peremptory norm should primarily be allocated to courts. For the second point, the most efficacious way of rendering jus cogens operational at the national level would reside in states passing legislation to the effect that peremptory norms are automatically binding within their municipal legal order and indeed override any contrary legislation; and for the third point, any time one party asserts that its legal claims are based on a peremptory norm and the other party disputes its existence, the community interest in the peaceful settlement of disputes should prompt states to accept adjudication of such dispute, if possible by the International Court of Justice.

Keywords:   international law, jus cogens, peremptory norm, judicial remedies

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