Demystifying the concept of peremptory norms: the nature and scope of jus cogens

Abstract

Humanity must be governed by a set of ideals. Ideals that stretch beyond what can be seen, a law that exists outside the realm of time and legislation, a law that invalidates what does not coincide with it. This law is jus cogens. As a concept, it enshrines the very essence of what makes mankind humane, it is shrouded in the notion of human dignity. However, as humanity develops, so do the contents of jus cogens? This study seeks to answer this question, firstly by ascertaining the correct formulation of what jus cogens actually is. This naturally leads to the question of how jus cogens comes about, in other words, what are the theoretical underpinnings. I posit that jus cogens arises out of a fiduciary relationship between the state and its citizens, and will always permeate to cater for the needs of its citizenry because of the same fiduciary relationship. As a result, it is this fiduciary relationship that is the foundation in determining the future of jus cogens and its scope. In order to bring clarity to the concept of jus cogens, the study recommends that a formula should be enshrined in treaty law for making such a determination, on what can and can’t be considered jus cogens. Secondly a code, law or statute enshrining all the jus cogen violations and bringing to life the legal principle of legality.... namely that the law should be “certain.” Lastly a mode of enforcement of sanctions that is able to circumvent the obstacles that international politics presents to the fair and universal application of jus cogen violations.