Jus cogens is the ultimate source of international law. Differently from other forms of customary laws, jus cogens underpins non-rebuttable norms overriding all contrary customary (not peremptory) and contractual law. What is special about jus cogens? The paper argues that jus cogens norms are characterized by a moral dimension that is not subject to the will of states; yet, as law it often (even if not always) requires states’ positive endorsements. There is not a single specific source of jus cogens legitimation, as among those listed by art.38 of the Statute of the ICJ, nor jus cogens is a separate source of law. The common trait of different processes of law-creation (customary, contractual etc.) stands in the higher moral status of the defended value. Why state entities have to presuppose a “moral hypothesis” for making sense of the validity of the law? Does jus cogens fill-in such moral presupposition?
The world has seen many humanitarian crises in the last three decades. Several of them are protracted, having lasted for a decade or more, without an end in sight. Examples include Libya, Syria, Yemen, the Democratic Republic of Congo, Palestine, etc. If one considers that the prohibition of crimes against humanity and the basic rules of international humanitarian law are part of jus cogens, how can we explain that these humanitarian crises, with the associated serious violations, have been ongoing for a long time? Do jus cogens norms exist without corresponding obligations on the part of states or international organizations? Does the position of the International Court of Justice (ICJ) that obligations exist, even if they are non-justiciable for lack of jurisdiction, provide an adequate response when it comes to the implementation of jus cogens norms?
It is difficult to argue that an explicit jus cogens norm on the protection of the environment exists at the international level. As it is known, jus cogens norms protect the fundamental values of the international community, are ‘hierarchically superior’ to other international law norms and universally applicable (A/CN.4/L.936, ILC). Does the right to environment have the potential to be recognised as a jus cogens norm? This paper argues, following the legal reasoning followed in the advisory opinion of the Inter-American Court of Human Rights of 2007, that the right to a healthy environment is gradually consolidating at the international level as jus cogens norm. Jus cogens has developed as humans-related norms, but in recent years it has become more and more clear that the protection of the environment cannot only serve human interests but must serve the interests of every human and non-human beings, and of ecosystems as well.
In NK Jemisin’s Broken Earth Trilogy, the core laws of the Stillness are written on stone. In tablet and verse, stone law sets out how that planet deals with the global crises that it repeatedly faces. But the tablets are incomplete, open to interpretation and their full intent and authorship uncertain. Nonetheless stone law forms the basis of the whole governance system. Ultimately, the narrative reveals that the stone laws are both more recent in origin but also an instrument of subjugation that and ‘common sense’. This subjugation includes peoples and the environment whose violent shaking creates the ‘broken’ nature of the world. Jus Cogens follow a long tradition of worldbuilding laws that are depicted as inevitable, absolute, unyielding and perpetual. Law and humanities is a well-established methodology and one increasingly successfully applied to international law.