Abstract
Abstract
This article offers a focused and critical defence of the concept of jus cogens in contemporary international law. It advances the argument that the persistent difficulties surrounding the identification and operation of peremptory norms under Article 53 of the Vienna Convention on the Law of Treaties (VCLT) arise not from the incoherence of jus cogens itself, but from an overly restrictive, consent-centred methodology employed in its interpretation. The article advances a teleological and value-oriented interpretative framework, drawing on the purposes and principles of the United Nations Charter, international human rights law, and the jurisprudence of international courts and tribunals. While acknowledging the critiques advanced by positivist and critical scholars—notably Martti Koskenniemi, Monica Hakimi, and Leandro Dias—the article contends that a carefully constrained form of teleological reasoning provides a coherent explanation of judicial practice and the normative role of jus cogens. Drawing extensively on the International Law Commission's 2006 Report on Fragmentation of International Law (A/CN.4/L.702) and the 2022 Draft Conclusions on Peremptory Norms—which deliberately refrained from providing an exhaustive list of jus cogens norms—the article confronts the unresolved tensions in this approach: the hermeneutic circle between consent and peremptory status, the risk of jus cogens becoming a rhetorical device in political struggles, the selectivity and inconsistency in judicial practice shaped by geopolitical considerations, the absence of robust institutional safeguards, the internal fragmentation of peremptory norms themselves, and the elusiveness of what "constrained" interpretation truly means. The article's central contribution is twofold: first, to demonstrate that the ILC's deliberate decision not to compile an exhaustive list of jus cogens norms (Draft Conclusion 23 and its non-exhaustive annex) is not a weakness but a methodological feature that preserves the concept's adaptability and systemic coherence; and second, to articulate a constrained teleological approach that draws upon and synthesizes the insights of leading scholars in the field, including Alexander Orakhelashvili, Robert Kolb, Ulf Linderfalk, Thomas Weatherall, and Dire Tladi. Rather than proposing legislative reform, the article situates jus cogens within broader debates on the methodology and philosophy of international law and defends its continuing relevance while insisting on methodological transparency and self-critique.