"Jus cogens and the concept of a normative conflict" [2020] ELECD 78; in Linderfalk, Ulf (ed), "Understanding Jus Cogens in International Law and International Legal Discourse" (Edward Elgar Publishing, 2020) 154

Book Title: Understanding Jus Cogens in International Law and International Legal Discourse

Editor(s): Linderfalk, Ulf

Publisher: Edward Elgar Publishing

Section: Chapter 7

Section Title: Jus cogens and the concept of a normative conflict

Number of pages: 21

Abstract/Description:

This chapter inquires into the respective ideas of legal positivism and legal idealism regarding the proper use of the concept of a normative conflict in the particular context of secondary jus cogens obligations and no-competences. It finds that depending on which of these two schools of thought a lawyer endorses, he or she will define this concept differently. According to legal positivists, a jus cogens rule is in conflict with a rule of ordinary international law when, depending on which of two rules is applied, the conduct of a state is either consistent or inconsistent with international law. According to legal idealists, a jus cogens rule is in conflict with a rule of ordinary international law when the effect of the application of the latter would be contrary to the teleological principle underlying the former, or inconsistent with a commitment to the ideal that this rule is assumed to serve.