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The Law of Treaties Beyond the Vienna Convention$
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Enzo Cannizzaro

Print publication date: 2011

Print ISBN-13: 9780199588916

Published to Oxford Scholarship Online: September 2011

DOI: 10.1093/acprof:oso/9780199588916.001.0001

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The Metamorphosis of Jus Cogens: From an Institution of Treaty Law to the Bedrock of the International Legal Order?

The Metamorphosis of Jus Cogens: From an Institution of Treaty Law to the Bedrock of the International Legal Order?

Chapter:
(p.381) 23 The Metamorphosis of Jus Cogens: From an Institution of Treaty Law to the Bedrock of the International Legal Order?
Source:
The Law of Treaties Beyond the Vienna Convention
Author(s):

Karl Zemanek

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780199588916.003.0023

When the Vienna Convention on the Law of Treaties confirmed the existence of peremptory norms of international law (jus cogens) they were conceived, like Roman jus publicum, as absolute law that could not be altered by the will of individual States. Scholars then transformed the concept into the manifestation of public policy (ordre public). They also argued for widening the scope of its application to unilateral legal acts and customary international law. A recent trend in academic theory assigns jus cogens an essential role in the constitutionalization of international law, postulating it either as hierarchically higher order or as embodying the constitutional principles. In view of the rashness of scholars in proclaiming the peremptory character of norms and also of the inexpertness of the European and national courts in applying supposedly peremptory international norms in their decisions, it seems better to keep jus cogens at its original task.

Keywords:   constitutionalization, customary international law, jus cogens, national courts, ordre public, peremptory norms, public policy, unilateral legal acts

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