This Chapter uses the history and function of the jus cogens concept in international law to demonstrate that its meaning and implication have varied in respond to particular sets of interests of significant international actors. The history reveals three incarnations of the concept: A claim about limits on the ability of sovereign States to enter into treaties that negate the essence of State sovereignty; a claim about limits on the formation of international law based on the fundamental interests of the States engaged in Cold War competition; and a claim about the existence of strong protection of human interests that exists independent of State consent. The principal argument of the Chapter is that the present, human-rights oriented conception of jus cogens is itself contingent and a reflection of the interests of persons who participate in the international legal system, especially non-State actors. The Chapter speculates about changes in the configuration of State interests that might produce new adaptions of the jus cogens concept, including doctrines and applications that would be fundamentally at odds with the current conception.
Paul B. Stephan
Paul B. Stephan
This Chapter treats the design of judicial mechanisms (international courts, domestic courts, arbitral tribunals and the like) as variables that are intended to and do affect the output of these courts, particularly the scale and scope of claims about international law. It looks at the selection process for tribunal members, the terms of reference given to the tribunal, and the post-adjudication retention constraints on members, such as length of term and non-reappointment. To test this claim, the Chapter focuses on six case histories of instances where judicial mechanisms have diverged about the content of international law, in some instances within a single overarching case. The case histories both illustrate and are consistent with four conjectures about the effect of variation in design on the content of the product of international adjudication: national courts will demonstrate great variation; the responsiveness of international tribunals to State interests will reflect these design features; regional tribunals will reflect particular regional interests to a greater extent than will broad-based multilateral tribunals; and special purpose tribunals will tend to expand their jurisdiction, which is to say the scope of the claims they make about international law, to a greater extent than will broad-based multilateral tribunals.