Jus Cogens in Contemporary International Law: A Constrained Teleological Defence
This article defends the coherence and relevance of *jus cogens* in contemporary international law by arguing that its perceived operational difficulties stem from an overly restrictive consent-based methodology, and instead advocates for a "constrained teleological" interpretative framework that embraces the International Law Commission's non-exhaustive approach to peremptory norms while synthesizing insights from leading scholars to navigate the tensions between state consent, geopolitical selectivity, and the need for systemic adaptability.
Original paper licensed under CC BY 4.0 (https://creativecommons.org/licenses/by/4.0/). This is an AI-generated explanation of the paper below. It is not written or endorsed by the authors. For technical accuracy, refer to the original paper. Read full disclaimer
Imagine a world where every agreement between countries is like a handshake, valid only because both parties willingly agreed to it. For centuries, this idea of "consent" has been the bedrock of international law: if a nation did not sign a treaty, it is not bound by it. But what happens when a rule is so fundamental that it binds everyone, even those who never agreed to it? This is the realm of jus cogens, a Latin term meaning "compelling law." These are the non-negotiable rules of the global community, such as the absolute bans on genocide, slavery, and torture. They are supposed to sit above all other agreements, acting as a constitutional floor that no country can dig beneath. Yet, for decades, legal scholars have struggled with a frustrating paradox: if these rules are so powerful, how do we know exactly which ones they are? The traditional method requires us to prove that every single country agrees, but if we wait for that total agreement, we might never find any rules at all. This tension between the need for universal agreement and the reality of a fractured world has left the concept of jus cogens in a state of constant debate, with some arguing it is a powerful shield for human rights and others claiming it is merely a political tool used by the strong to control the weak.
A new analysis by researcher Taha Poostindooz seeks to resolve this stalemate not by finding a new list of rules, but by changing how we look at the process of finding them. The paper argues that the confusion surrounding these supreme laws does not come from the laws themselves being broken or incoherent. Instead, the problem lies in the method we use to identify them. For too long, legal experts have tried to pin down jus cogens by counting votes or measuring how many nations have signed specific treaties. Poostindooz suggests this "consent-centered" approach is too rigid and misses the point. The author proposes a different way of thinking, one that looks at the purpose and values of the international legal system as a whole. This approach, described as "teleological," asks not just "who agreed to this?" but "what is this rule trying to achieve for the community?" By focusing on the goals of the United Nations and the fundamental values shared by humanity, the paper argues we can understand these rules without needing a perfect, universal signature from every nation on Earth.
The study takes a close look at the work of the International Law Commission, a body of legal experts that recently released a list of eight specific norms recognized as jus cogens, including the prohibitions on aggression, genocide, and racial discrimination. Crucially, this list was not a final, closed catalog. The Commission deliberately left it open-ended, refusing to say "these are the only eight." Some critics saw this as a weakness, a sign that the experts could not agree on more. Poostindooz, however, turns this criticism on its head. The paper contends that the decision to keep the list open is actually a strength, not a flaw. By not freezing the list in time, the legal system remains flexible enough to adapt to new challenges, such as digital rights or environmental crises, without needing to rewrite the entire rulebook. This open-ended nature allows the concept to evolve as the global community's conscience evolves, preserving the system's ability to function even when nations disagree.
To support this view, the author examines how international courts have actually behaved in real cases, rather than how they are supposed to behave in theory. The paper highlights a pattern of "selectivity" in how judges apply these rules. In some situations, courts readily use jus cogens to protect fundamental rights, such as the right of a people to choose their own government. In other cases, however, the same courts retreat into strict technicalities, refusing to let these supreme rules override other legal protections, such as the immunity of a state from being sued in foreign courts. This inconsistency suggests that the courts are not simply following a mechanical checklist of agreed-upon rules. Instead, they are navigating a complex landscape of political pressure and institutional constraints. The paper argues that a "constrained teleological" approach can explain this behavior. It suggests that judges are trying to balance the high values of the international community with the practical realities of state sovereignty, using the purpose of the law to guide their decisions when the written rules are ambiguous.
The research also confronts the deep skepticism raised by critics who argue that international law is just a collection of political strategies rather than a true system of rules. These critics point out that claiming a rule is "supreme" often serves as a political move to elevate a specific dispute, rather than a reflection of a genuine shared value. Poostindooz acknowledges this danger but argues that it does not mean the concept is useless. Instead, the paper suggests that we must accept the tension between state consent and universal values as an inherent part of the system. The solution is not to abandon the idea of supreme rules, but to be transparent about how we interpret them. By admitting that our understanding of these rules is shaped by the values we hold dear, rather than pretending it is a purely mathematical calculation of votes, the legal system can remain honest and adaptable.
Ultimately, the paper concludes that the strength of jus cogens lies in its ability to hold the international legal system together, acting as a glue that prevents the system from falling apart into conflicting fragments. The author draws on the work of several leading legal scholars to build a framework where these supreme rules are seen as the "constitutional core" of international law. This perspective views the rules not as static commands from above, but as the essential conditions that make a stable legal order possible in the first place. The study finds that the current method of leaving the list of supreme rules open is the correct path forward. It allows the law to breathe and grow, ensuring that the fundamental values of the human community are protected even when the world is divided. The paper does not claim to have solved every mystery or removed every political bias from international law. Instead, it offers a clearer, more honest way to understand how these powerful rules function, suggesting that their true power comes not from a perfect agreement among nations, but from a shared commitment to the values that make peace and justice possible.
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