It has often been claimed (from Verdross and Visscher to Weil, Cançado Trindade and Orakhelashvili a.m.o.) that ius cogens poses an existential threat to legal positivism as a theory of international law, in at least two ways: 1/ it places great constraints on the principle that the will of states is the supreme source of law-making (either directly or indirectly) ; 2/ it grounds the lawfulness of state actions and the validity of legal norms in the international sphere in fundamental moral values.
This lecture, Professor Mathieu Carpentier aims to debunk the notion that legal positivism cannot cope with ius cogens. It proceeds in three unequal parts.
First the notion of legal positivism is disambiguated and defined in a narrow sense: it is suggested that positivism is mainly a theory about sources of law as grounds of legal validity.
In the second part, it is shown that a norm's ius cogens character is orthogonal to its legal validity. The two-step approach to the identification of ius cogens norms endorsed by the International Law Commission is espoused and defended as wholly consistent with a positivistic outlook.
The third part raises an additional worry, to wit, that ius cogens works as a "ratchet effect" so that ius cogens norms cannot be logically modified. This clashes with positivism's intuition that law is basically a human enterprise, so that no law is beyond modification. Drawing a parallel with "eternity clauses" in constitutional law, the lecture presents three possible solutions (compatible with positivism) to this puzzle.
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