looks to, well, practice. This special kind of tension—the tension of an authoritative, normative struggle—finds itself further complicated in the jurisprudence of international courts and tribunals. When it comes to adjudicating jus cogens-related rights in the context of specific legal disputes, there are no satisfactory answers to the questions that logically issue. For instance, who suffers injury when a peremptory norm is breached? Does universal jurisdiction attach? What about universal standing? Are states bound by a universal duty to prosecute? Where do states’ obligations logically begin and end? On the subject of obligations erga omnes, M. Cherif Bassiouni has argued that [R]ecognizing certain international crimes as jus cogens carries with it the duty to prosecute or extradite, the applicability of statutes of limitation for such crimes, and universality of jurisdiction over such crimes irrespective of where they were committed, by whom (including Heads of State), against what category of victims, and irrespective of the context of their occurrence (peace or war). That is, “characterization of certain crimes as jus cogens places upon states the obligatio erga omnes not to grant impunity to the violators of such crimes.” Unfortunately, it would hardly be controversial to state at this point that essentially no such obligations have consistently managed to attach among states in the international community. Jus cogens norms, broadly speaking, have been incorporated in the international legal jurisprudence in very spotty fashion. On the one hand, the Inter-American Commission on Human Rights (“IACHR”) has described jus cogens norms as part of a “superior order of legal norms, which the laws of man or nations may not contravene,” sourced from “the essential dignity of the individual.” And Judge Lauterpacht, in his separate opinion in the case Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), thought that jus cogens norms could perhaps be superior to Article 103 of the United Nations Charter
looks to, well, practice. This special kind of tension—the tension of an authoritative, normative struggle—finds itself further complicated in the jurisprudence of international courts and tribunals. When it comes to adjudicating jus cogens-related rights in the context of specific legal disputes, there are no satisfactory answers to the questions that logically issue. For instance, who suffers injury when a peremptory norm is breached? Does universal jurisdiction attach? What about universal standing? Are states bound by a universal duty to prosecute? Where do states’ obligations logically begin and end? On the subject of obligations erga omnes, M. Cherif Bassiouni has argued that [R]ecognizing certain international crimes as jus cogens carries with it the duty to prosecute or extradite, the of statutes of limitation for such crimes, and universality of jurisdiction over such crimes irrespective of where they were committed, by whom (including Heads of State), against what category of victims, and irrespective of the context of their occurrence (peace or war). That is, “characterization of certain crimes as jus cogens places upon states the obligatio erga omnes not to grant impunity to the violators of such crimes.” Unfortunately, it would hardly be controversial to state at this point that essentially no such obligations have consistently managed to attach among states in the international community. Jus cogens norms, broadly speaking, have been incorporated in the international legal jurisprudence in very spotty fashion. On the one hand, the Inter-American Commission on Human Rights (“IACHR”) has described jus cogens norms as part of a “superior order of legal norms, which the laws of man or nations may not contravene,” sourced from “the essential dignity of the individual.” And Judge Lauterpacht, in his separate opinion in the case Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), thought that jus cogens norms could perhaps be superior to Article 103 of the United Nations Charter applicability
4-Guan-Final-macro.docx