LAWS6243 International Law - Research Essay Help

Introduction

The purpose of this paper is to deconstruct both customary international law which is jus cogens and also D’Amato’s question which is that regarding the relevance of jus cogens in the 21st century, and whether or not it serves as a mere norm, deriving only rhetorical power, rather than any real power, considering that international law is already challenged as a field and operative domain as an international law, and called more like an international morality. However, in the state of current developments, International law to a huge extent has been codified, which ultimately reduces the power of norm, rendering jus cogens not much power, but only rhetorical value. By utilizing the concept of legal pluralism, the theory on principles of justice by John Rawls, the crisis in the Balkans shedding light on the importance of customary law, jus cogens unnecessarily enhancing the power of the veto, where the exact scope of the contents of jus cogens needs clarification, with the interrelationship between state immunity and jus cogens crimes, and moreover how jus cogens falls short of being universal even though it is general. The political economy aspect of jus cogens will also be analyzed, whereby jus cogens is only a reflection of the parties who have opted upon it and in the face of the evolving international order where countries are drifting away from their customs in lieu of international problems such as terrorism, and where violence against terrorists although violates customary human rights law, it is a necessary means of survival in the modern day. Additionally, the human rights law will be analyzed in lieu of jus cogens, to understand whether the purpose of customary law is being fulfilled, as it was originally pioneered to or has it as per D’Amato’s saying become only a rhetorical piece. 

Customary international law versus material international law

Jus cogens is the reliance on customary international law, a prevailing norm such as for instance human rights which needs to be followed by any material international law, in that customary law precedes material law. The authority that this kind of law, with the nature of jus cogens derives is that it is considered above every other international law, and yet it is only a metaphor, as it relies to no specific laws, but rather peremptory norms which supercede all other laws. During the times prior to the World Wars, between the two wars, and right after the Cold War, was the period when the concept of jus cogens had the most relevance as international law was in the process of being codified in its most rudimentary forms, and led to the founding of the UN Charter, a charter to be followed by all countries in the international domain. With referral regarding when a usage turns into custom, Oppenheim said: – “All that theory can point out is this: Wherever and as soon as a certain frequently adopted international conduct of States is considered legally necessary or legally right, the rule, which may be abstracted from such conduct, is a rule of customary International Law.”, and this jus cogens has based on D’Amato’s question is more or less becoming relevant simply because the custom is now changing, and there exist complexities, whereby the authority with which custom derived its relevance is now being questioned by its ability to influence and implement international law in various domains. This will be further explored in the paper in light of the examples provided, mentioned already in the former section.