The Origins and Sources of Jus Cogens

Abstract This chapter traces the origins and sources of jus cogens. Jus cogens has been developed largely by international legal scholarship, which has attempted to identify the theoretical foundations of a world juridical order. Every classic author in the field of international law expounds a theory of the source of obligation and the nature of international law. They typically distinguish between voluntary or consensual law and compulsory norms that bind a state independently of its will. Some early writers found the source of compulsory law in divine or religious law binding all humans and human institutions. A related theory derives the concept of jus cogens from general principles of law, noting the existence of overriding public policy and superior norms in all legal systems. Finally, positivists rely on state consent for the origin, content, and functions of jus cogens.