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

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Author

Summary, in English

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.

Publishing year

2011

Language

English

Pages

359-378

Publication/Series

Zeitschrift für ausländisches öffentliches Recht und Völkerrecht : Heidelberg journal of international law

Volume

71

Document type

Journal article

Publisher

C.H. Beck

Topic

  • Law

Keywords

  • Public international law
  • Folkrätt

Status

Published

Research group

  • Public International Law

ISBN/ISSN/Other

  • ISSN: 0044-2348