The Gender of Jus Cogens
![handle is hein.journals/hurq15 and id is 73 raw text is: HUMAN RIGHTS QUARTERLY
The Gender of Jus Cogens
Hilary Charlesworth and Christine Chinkin
I. INTRODUCTION: THE DOCTRINE OF ]US COGENS
The modern international law doctrine of jus cogens asserts the existence
of fundamental legal norms from which no derogation is permitted.1 It imports
notions of universally applicable norms into the international legal process.
The status of norms of jus cogens as general international law, Onuf and
Birney argue, is not a logical necessity so much as a compelling psycho-
logical association of normative superiority with universality.2 A formal,
procedural definition of the international law concept of the jus cogens is
found in the Vienna Convention on the Law of Treaties.3 Article 53 states
that:
[A] peremptory norm of general international law is a norm accepted and
recognized by the international community of States as a whole as a norm from
which no derogation is permitted and which can be modified only by a sub-
sequent norm of general international law having the same character.'
1. ]us cogens norms have also been recognized in many domestic legal systems. See Eric
Suy, The Concept of Jus Cogens in Public International Law, in 2 The Concept of ]us
Cogens in International Law 17, 18-22 (Carnegie Endowment for International Peace,
1967); J. Sztucki, Jus Cogens and the Vienna Convention on the law of Treaties 6-11
(1972). On the existence of the doctrine of jus cogens in international law before the 1969
Vienna Convention, see, Alfred von Verdross, Forbidden Treaties in International Law, 31
Am. J. Int'l L. 571 (1937); Egon Schwelb, Some Aspects of International Jus Cogens as
Formulated by the International Law Commission, 61 Am. J. Int'l L. 946, 948-60 (1967);
International Law Commission Report 1982, at 132, U.N. Doc. A/37/10 (1982); Lauri
Hannikainen, Peremptory Norms (Jus Cogens) in International Law chs. 1, 2 (1988).
2. N.G. Onuf & Richard K. Birney, Peremptory Norms of International Law: Their Source,
Function and Future, 4 Denver J. Int'l L. & Pol'y 187, 190 (1974).
3. Vienna Convention on the Law of Treaties, 1155 U.N.T.S. 331,63 Am. J. Int'l L. 875, 891
(1969).
4. Article 53 purports to define the notion of jus cogens only for the law of treaties within
the Vienna Convention itself, but is generally regarded as having wider significance. See
also, Vienna Convention on the Law of Treaties between States and International Organi-
zations or between International Organizations 1986, art. 53, 25 I.L.M. 572 (1986). Apart
Human Rights Quarterly 15 (1993) 63-76 c 1993 by The Johns Hopkins University Press](ViewImageLocal?handle=hein.journals/hurq15&div=10&collection=&method=preview&ext=.png&size=3)
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The Gender of Jus Cogens
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