This paper 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 paper 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 paper 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.
En række amerikanske præsidentkandidater og kongresmedlemmer er i de sidste år begyndt at argumentere for, at USA burde lancere militære angreb mod...
Lenders are perfectly free to decide for themselves whether, when, how, to whom and on what terms they will extend credit to a sovereign borrower. But...
The Supreme Court’s recent expansion of the major questions doctrine has rocked administrative law, throwing into doubt executive agencies’ statutory...
In the last few years, the Supreme Court has upended its doctrine of religious freedom under the First Amendment. The Court has explicitly rejected...
Countries hit by unexpected crises often look to their overseas diasporas for assistance. Some countries have tapped into this generosity of their...
In an era defined by partisan rifts and government gridlock, many celebrate the rare issues that prompt bipartisan consensus. But extreme consensus...
In this article, we examine the relations between risk, the choice of foreign or local contract terms (parameters), and maturity in the sovereign debt...
In this article, we examine the relations between risk, the choice of foreign or local contract terms (parameters), and maturity in the sovereign debt...
Both theorists and courts commonly assume that high-dollar financial contracts between sophisticated parties are free of linguistic errors...
This article discusses the links between climate and debt sustainability by focusing on how climate mitigation and adaptation are paid for, and who...
Courts routinely use low cash bail as a financial incentive to ensure that released defendants appear in court and abstain from crime. This can create...
At the inception of a new and potentially transformative type of tax enforcement, this Article reviews the goals underlying the prohibition on state...
Since Russia invaded Ukraine in 2022, the United States and its allies have searched for the best way to express their horror and dismay. At the level...
I’m writing about a book of mine that may be of interest to the election law community. The title is Public Law and Economics, my coauthor is Robert...
Ethnographic approaches are not as widely practiced among constitutional scholars as they probably should be. Some may harbor perfectly reasonable...