Jus Cogens: Towards an International Common Good?

The nature of jus cogens has been an intellectual puzzle for international law academics to date. This article explores why an explanation of jus cogens lies beyond the formal sources of international law and cannot be reduced to either constitutional or public order explanations alone. It argues that jus cogens norms should instead be understood as shaped by the common good of the international community, and particularly as fundamental legal means for the international community to be able to achieve, or coordinate towards, this common good. If jus cogens norms are understood as arising from the normative commitments that states make by necessary implication for the achievement of the shared objectives and goods of the international community, then it becomes clearer why they would be both constitutive and public order in nature—supporting what Hersch Lauterpacht refers to as the reason for being of the international community.