The Unresolved Paradox in Modern International Law

| Reading time: 19 minutes

Key Takeaways:

• Jus cogens norms claim absolute supremacy yet emerged through the same consent-based processes that create ordinary international law, generating an unresolved theoretical paradox
• International courts, the ILC, and legal scholars systematically avoid addressing whether unanimous state consent could abolish peremptory norms, employing strategic silence to preserve doctrinal stability
• The distinction between conceptual immutability and political impossibility remains unacknowledged—doctrine conflates the theoretical question with its empirical unlikelihood
• Emerging governance challenges in AI, cyber security, and climate are forcing confrontation with these theoretical ambiguities as new domains may require jus cogens-level protections
• Three competing models—constitutional immutability, hegemonic enforcement, and legitimacy-based aspiration—offer different frameworks for understanding jus cogens authority, though none has achieved formal doctrinal recognition

Table of Contents

• What Is the Jus Cogens Paradox, and Why Does International Law Treat It as Unspeakable?
• How Does Universal State Consent Actually Create International Law, and Where Are Its Theoretical Limits?
• Why Do Courts, Institutions, and Scholars Refuse to Answer Whether Jus Cogens Can Be Legally Abolished?
• What Would It Mean Legally If Universal Consent Could Remake Jus Cogens, and What Are the Alternatives?
• Frequently Asked Questions
• Conclusion
• Sources

What Is the Jus Cogens Paradox, and Why Does International Law Treat It as Unspeakable?

International law rests upon a foundational claim that appears, upon examination, to contain an irreconcilable tension. The doctrine of jus cogens—peremptory norms from which no derogation is permitted—asserts that certain rules stand above all others, binding every state regardless of individual consent. Yet the very system that elevates these norms derives its authority from state consent. If states collectively created international law and continue to shape it through agreement, what prevents unanimous state consent from abolishing the norms that doctrine declares inviolable? This question, though logically unavoidable, has been systematically treated as intellectually dangerous territory that scholars and courts prefer not to enter.

Jus cogens norms occupy the apex of international legal hierarchy. Article 53 of the Vienna Convention on the Law of Treaties defines a peremptory norm as one accepted and recognized by the international community of states as a whole as a norm from which no derogation is permitted. The International Law Commission has spent decades identifying and codifying these norms, with its ongoing 2024–2025 work continuing to refine the criteria for jus cogens recognition. The prohibition against genocide, the ban on slavery, the absolute prohibition of torture, the prohibition of aggressive war, and the right to self-determination represent the canonical examples that virtually all authorities accept. These norms purportedly cannot be set aside by treaty, cannot be waived by bilateral agreement, and cannot be modified through persistent objection. They constitute, in doctrinal terms, the non-negotiable foundation upon which legitimate international relations must rest.

The paradox emerges when one traces the genealogy of these supreme norms. Unlike natural law theories that ground obligation in divine command or inherent moral truth, modern international law explicitly derives its binding force from state consent. The consent-based framework explains why treaties bind their parties, why customary international law requires both state practice and opinio juris, and why new states are expected to accept the existing legal order upon entering the international community. The Cambridge Global Constitutionalism journal has published extensive analysis demonstrating that state consent remains the dominant legitimating principle in contemporary international legal thought, even as scholars acknowledge its theoretical limitations. If consent provides the foundation, however, then consent should logically be capable of modifying any structure built upon it. The architecture cannot be stronger than the ground on which it stands.

Yet international legal doctrine insists that jus cogens norms possess a quality that transcends their consensual origins. Once a norm achieves peremptory status through the recognition of the international community as a whole, it supposedly becomes immune to subsequent modification except through the emergence of a new jus cogens norm of equal standing. The Oxford University Press scholarship on the limits of consent addresses this tension directly, noting that international law claims to have absolute boundaries that exist independent of state agreement while simultaneously acknowledging that state recognition determines which norms qualify for this protected status. The circularity is evident: states consent to recognizing certain norms as beyond the reach of consent.

The international legal community has responded to this paradox not through resolution but through strategic silence. No major court decision directly addresses whether unanimous state agreement could lawfully abolish a peremptory norm. The International Court of Justice, regional human rights tribunals, and international criminal courts have all affirmed jus cogens supremacy without confronting the foundational question of what would happen if every state agreed to abandon a particular prohibition. Scholars who raise the question typically acknowledge it as theoretically interesting before pivoting to more tractable issues. The International Law Commission’s extensive work on jus cogens identification proceeds as though the identification process were the primary challenge, leaving the deeper legitimacy question unaddressed. This avoidance appears deliberate rather than accidental.

Two distinct forms of immutability require differentiation to understand why the paradox persists. Conceptual immutability holds that jus cogens norms cannot be changed by any legal means available within the international legal system. Under this view, unanimous consent to abolish the prohibition on genocide would not constitute valid law-making but would instead represent the collapse of the legal order itself. The system cannot authorize its own fundamental principles to be dismantled. Empirical immutability, by contrast, treats the question as practically irrelevant because universal state agreement on such matters remains politically impossible. Why resolve a theoretical puzzle that will never arise in practice? These two positions lead to radically different conclusions about the nature of international law, yet conflating them allows the field to avoid confronting either one directly.

The legitimacy gap created by this avoidance carries significant consequences for international legal authority. A hierarchical system that cannot explain the source of its apex norm’s supremacy risks appearing either self-contradictory or authoritarian. If jus cogens supremacy cannot be grounded in consent, then some other foundation—natural law, moral realism, or systemic necessity—must be doing the work that doctrine refuses to acknowledge explicitly. If supremacy is ultimately grounded in consent, then the claim of absolute immutability appears overstated. The ongoing 2024–2025 ILC codification efforts compound this difficulty by continuing to develop and refine the jus cogens catalogue, demonstrating that the identification and scope of peremptory norms remain subject to evolving international consensus. If the community of states can expand jus cogens through recognition, the question of whether that same community could contract or abolish existing norms becomes increasingly difficult to dismiss as merely hypothetical.

The paradox examined here is not a recent discovery. Scholars have noted the tension between consent-based legitimacy and hierarchical supremacy since the concept of jus cogens entered positive international law in the mid-twentieth century. What distinguishes the contemporary moment is the combination of increased jus cogens invocation in international litigation, ongoing codification work that treats peremptory norms as identifiable through quasi-legislative processes, and growing theoretical attention to the foundations of international legal authority. The question that doctrine has treated as unspeakable may not remain so indefinitely.

Sources: ILC Jus Cogens Topic Page – Official Documentation, The Ethics of State Consent to International Law – Cambridge Global Constitutionalism, The Limits of Consent in International Law – Oxford University Press

How Does Universal State Consent Actually Create International Law, and Where Are Its Theoretical Limits?

Understanding the paradox requires examining how consent actually operates as the generative mechanism of international legal obligation. International law derives its authority from three primary sources, each fundamentally dependent upon state behavior and agreement. Treaties represent the most explicit form of consent, requiring states to voluntarily bind themselves through signature and ratification. Customary international law emerges from consistent state practice accompanied by opinio juris, the belief that such practice constitutes legal obligation. General principles of law, drawn from domestic legal systems worldwide, similarly reflect what states have collectively recognized as foundational norms. This tripartite structure establishes consent as the generative mechanism of international legal obligation, creating the baseline assumption that states possess the authority to make law precisely because they agree to be bound by it.

The United Nations Charter demonstrates how foundational international law operates through broad, though not absolute, agreement. With 193 member states representing near-universal participation, the Charter functions as a constitutional instrument for the international community. This institutional framework extends the consent principle into binding organizational law, where membership creates obligations that individual states did not negotiate line by line. The Security Council, the International Court of Justice, and specialized agencies all derive their authority from this consensual foundation, yet exercise powers that can bind states in specific circumstances without renewed case-by-case approval. The 2024 operations of these institutions continue to reflect this tension between foundational consent and ongoing operational authority.

A critical gap exists between theoretical universality and practical reality in international law-making. Near-universal participation, even at 193 states, does not constitute universal consent in the strict philosophical sense. Small island nations, newly independent states, and territories with disputed sovereignty complicate any claim to genuine unanimity. Yet the legal system treats broad participation as sufficient for norm-establishment in both customary and institutional contexts. Customary international law, for instance, requires consistent practice among states whose conduct is relevant to a particular norm, not the affirmative agreement of every sovereign entity. This practical threshold for legal validity means that international law already operates on something less than perfect unanimity while maintaining claims to universal applicability.

Evolving state practice in emerging domains reveals consent as a dynamic, ongoing process rather than a one-time authorization. The United Nations Open-ended Working Group on information and communications technology security has facilitated continuous negotiation among states regarding responsible behavior in cyberspace, with 2024 and 2025 sessions working toward framework agreements that would establish new norms through iterative consensus-building. The March 2024 United Nations General Assembly resolution on artificial intelligence governance, adopted without a vote, demonstrates how states can establish normative frameworks for novel technologies through collective expression rather than formal treaty ratification. Climate obligations similarly evolve through institutional processes, with World Meteorological Organization data informing state commitments that adjust over time in response to scientific evidence. These examples illustrate that the international legal system accommodates perpetual norm-creation through consent mechanisms that remain active and responsive to changing circumstances.

The theoretical problem emerges with particular force when one follows the logic of consent to its apparent conclusion. If consent creates law, and if law can evolve through new expressions of consent, what prevents a scenario in which all states agree to dismantle or replace a jus cogens norm? The prohibition on genocide, the ban on torture, and the rule against aggressive war all claim status as peremptory norms precisely because the international community has designated them as such. Yet that designation itself occurred through collective recognition and articulation, most explicitly in the Vienna Convention on the Law of Treaties. The paradox becomes acute: the very mechanism that established these norms as supreme appears, in theory, capable of revising or abolishing them. Scholarly treatment of this scenario characteristically dismisses it as politically implausible rather than conceptually illegitimate, leaving unresolved whether the dismissal represents genuine legal impossibility or merely analytical avoidance.

Distinguishing consensus-based legal creation from hierarchy illuminates the structural tension at the heart of modern international law. The system readily permits voluntary new obligations through treaties and custom, allowing states to expand, modify, and even contract their legal commitments through ongoing agreement. States may withdraw from treaties, modify customary expectations through changed practice, and establish new institutional frameworks through negotiated instruments. Yet the same system resists the proposition that voluntary agreement could void what are declared as non-voluntary norms. Jus cogens occupies this peculiar position: norms that emerged from collective recognition yet claim immunity from collective revision. The Cambridge scholarship on state consent and disagreement in international law-making has explored how the legal order manages this tension, noting that the paradox dissolves only if one accepts that certain norms transcend the consent mechanism that identified them. Whether that transcendence represents a coherent legal principle or an article of faith remains the central unresolved question in contemporary doctrine.

Sources: UN Member States, UN Open-ended Working Group on ICT Security, UN General Assembly AI Resolution 2024, State Consent and Disagreement in International Law-making – Cambridge

Why Do Courts, Institutions, and Scholars Refuse to Answer Whether Jus Cogens Can Be Legally Abolished?

Having established the theoretical tension between consent and hierarchy, we can now examine why the international legal community has chosen silence over resolution. The silence surrounding the theoretical abolition of jus cogens norms represents not intellectual failure but rather a sophisticated form of institutional self-preservation. Courts, treaty bodies, and academic institutions have collectively developed what might be termed a doctrine of strategic avoidance, recognizing that any definitive answer to the abolition question threatens to destabilize the entire edifice of international legal hierarchy.

The institutional reluctance to address jus cogens abolition becomes comprehensible when one considers the logical structure of available responses. Option A would require institutions to admit that peremptory norms could theoretically be amended through universal consent, thereby collapsing the distinction between jus cogens and ordinary customary law. If the prohibition against genocide differs from maritime boundary rules only in the current level of consensus rather than in kind, then the entire hierarchical framework loses its normative force. Option B would compel institutions to claim that jus cogens enjoys conceptual immunity from consent-based modification, yet this position contradicts the foundational principle that international law derives its binding force from state agreement. Such an admission would acknowledge that the international legal system possesses a non-consensual apex, fundamentally challenging sovereignty-based theories of obligation that have structured the discipline for centuries. Option C, remaining silent on the question, permits institutions to maintain the appearance of legal hierarchy without subjecting that hierarchy to logical scrutiny.

The dominance of Option C becomes even more rational when examined against the backdrop of enforcement asymmetries that have already damaged international law’s legitimacy. The International Criminal Court’s arrest warrant compliance patterns reveal stark inconsistencies that undermine perceptions of impartial justice. When the ICC Prosecutor has sought warrants against leaders from states with powerful allies, enforcement has proven sporadic at best, while suspects from less geopolitically significant nations face more consistent pursuit. The Security Council’s selective referral authority compounds this perception of double standards, as permanent members exercise effective immunity from the Court’s jurisdiction while supporting prosecutions elsewhere. In such circumstances, jus cogens serves as one of the few remaining conceptual anchors suggesting that international law operates according to principle rather than power. Admitting that even these supreme norms remain theoretically subject to unanimous modification would remove this last pillar of perceived impartiality.

The humanitarian data reinforces why institutions cannot afford additional credibility losses. UNHCR Global Trends 2024 reports that 123.2 million persons have been forcibly displaced worldwide, a figure representing the comprehensive failure of legal frameworks designed to prevent the very atrocities that jus cogens norms prohibit. International refugee law, the prohibition against torture, and the rules governing armed conflict all belong to the peremptory norm category, yet their systematic violation proceeds with limited accountability. United Nations peacekeeping operations, currently deploying over 70,000 personnel across multiple missions, demonstrate the gap between legal obligation and operational reality. When legal frameworks manifestly fail to protect the populations they purport to serve, admitting that even the theoretical foundation of those frameworks remains negotiable would compound the sense of systematic inadequacy.

Institutional path dependency further explains the avoidance pattern. The International Law Commission’s ongoing work on jus cogens identification, reflected in its 2024 and 2025 codification projects, proceeds on the implicit assumption that peremptory norms constitute a stable category amenable to systematic enumeration. Yet codification itself represents a form of potential norm modification that the system does not openly acknowledge. When the ILC articulates criteria for identifying jus cogens norms, it necessarily shapes future determinations about which rules qualify for peremptory status. This codification work could theoretically narrow or expand the jus cogens category, yet such modification occurs through technical legal processes rather than through explicit acknowledgment that the system is altering its own foundational constraints. The ILC’s procedural approach thus embeds an unspoken tension: the Commission treats jus cogens as though discovering pre-existing rules, while simultaneously engaging in activities that influence which rules will be recognized going forward.

The avoidance strategy mirrors broader patterns of constitutional avoidance observable in domestic legal systems, where courts develop doctrines specifically designed to sidestep fundamental questions whose resolution would threaten institutional legitimacy or practical functionality. International tribunals have repeatedly declined opportunities to clarify the theoretical limits of jus cogens, preferring to assume the existence of peremptory norms without examining their conceptual foundations. This approach allows the system to claim hierarchy without proving it, avoiding both the uncomfortable admission that nothing in international law is truly irreversible and the equally uncomfortable admission that some norms are enforced through power rather than principle.

The function of this silence extends beyond mere institutional convenience. By treating jus cogens as conceptually off-limits to fundamental questioning, courts and scholars preserve a space within international law that appears to transcend political negotiation. This preservation serves psychological and rhetorical purposes even when enforcement remains inconsistent. Legal practitioners, diplomats, and advocates can invoke peremptory norms as absolute constraints precisely because the system has not formally acknowledged their theoretical vulnerability. The silence thus operates as a form of constitutive speech: by refusing to answer whether jus cogens can be abolished, institutions performatively constitute those norms as though they cannot be. Whether this performative constitution ultimately proves sufficient to maintain international law’s legitimacy in an era of enforcement crisis remains the central unresolved question that the system’s strategic avoidance cannot indefinitely defer.

Sources: Statement of the Prosecutor of the International Criminal Court on arrest warrants, UNHCR Global Trends 2024, UN Peacekeeping Facts and Figures, ILC Jus Cogens Topic Page

What Would It Mean Legally If Universal Consent Could Remake Jus Cogens, and What Are the Alternatives?

The theoretical endgame of the consent paradox presents international law with three mutually exclusive possibilities, each carrying profound implications for the system’s coherence. If all 193 United Nations member states unanimously agreed to abolish the prohibition on genocide or slavery, the legal consequences would depend entirely on which foundational theory one accepts. The first possibility treats such unanimous agreement as legitimate law-making within the system’s existing rules, since the same consensual process that created jus cogens could logically modify it. The second possibility interprets such an event as regime collapse rather than law reform, requiring not merely new rules but replacement of the entire normative architecture that gives international law its character. The third possibility deems the scenario conceptually incoherent from the outset, because jus cogens derives its authority from extra-consensual moral necessity rather than state agreement, making unanimous consent to abolish such norms a logical impossibility regardless of how many states sign on.

The international legal system has historically avoided confronting this trilemma by conflating legal mutability with political feasibility. Universal consent to abolish fundamental human rights protections is empirically impossible given the diversity of state interests, the path dependency of institutional arrangements, and the sovereignty concerns that would prevent any state from accepting obligations that might later constrain its freedom of action. Yet impossibility does not resolve the theoretical problem; it merely defers it. Legal doctrine cannot coherently claim that jus cogens norms are absolutely immutable while simultaneously grounding their authority in the same consensual processes that produce ordinary international law. The International Law Commission’s reluctance to address this question directly in its 2022 conclusions and subsequent codification work reflects an institutional preference for constructive ambiguity over theoretical precision, a strategy that may prove increasingly untenable as new governance challenges demand clearer doctrinal foundations.

The system implicitly relies on three structural alternatives to resolve this tension, though none has achieved formal doctrinal recognition. The constitutional model treats jus cogens as a higher-order legal layer analogous to domestic constitutional provisions that constrain ordinary legislation. Under this framework, peremptory norms occupy a hierarchically superior position that insulates them from modification through standard law-making processes, requiring instead some form of constituent power that the current international system does not formally recognize. The hegemonic enforcement model acknowledges that jus cogens norms persist not because of pure principle but because powerful states and institutions have sufficient interest in maintaining them, making their apparent immutability a function of political economy rather than legal logic. The legitimacy-based aspiration model treats jus cogens as something between binding law and political commitment, sustained by the collective belief that certain practices lie beyond acceptable state behavior even if enforcement mechanisms remain weak. Each model carries distinct implications for how the system should respond when states challenge existing peremptory norms or when new domains require analogous protections.

Emerging governance challenges are forcing the international system toward a reckoning with these theoretical ambiguities. The United Nations General Assembly’s March 2024 resolution on artificial intelligence establishes principles for AI governance that member states endorsed through consensus, yet the resolution explicitly acknowledges that binding obligations may require different normative foundations than voluntary commitments. The ongoing cyber sovereignty discussions within the UN disarmament process similarly reveal tensions between state consent and systemic necessity, as states debate whether certain categories of cyberattacks should be prohibited regardless of universal agreement. Climate obligations present perhaps the starkest illustration: the World Meteorological Organization’s 2024 State of the Global Climate report confirms that global temperatures have reached approximately 1.55 degrees Celsius above pre-industrial levels, yet the legal framework for addressing climate change remains fundamentally consensual despite existential stakes. If the international community eventually concludes that climate obligations require jus cogens status, the same theoretical questions that plague existing peremptory norms will apply with even greater urgency to this new domain.

A coherent doctrinal path forward requires distinguishing conceptual immutability from consensual flexibility while preserving both system hierarchy and state agency. Conceptual immutability would establish that jus cogens norms cannot be modified through unilateral denunciation, persistent objection, or pluralist treaty-making among subsets of states. Consensual flexibility would acknowledge that universal state agreement could theoretically constitute regime transformation rather than ordinary law-making, thereby preserving the system’s capacity for fundamental change while maintaining the practical barriers that make such change extraordinarily difficult. This distinction does not resolve all theoretical difficulties, but it does provide a framework for addressing the questions that emerging governance domains will inevitably raise. Scholars have noted that the ethics of state consent require transparency about what consent can and cannot accomplish within international law’s normative architecture, and the same principle applies to institutional practice.

The broader implication extends beyond doctrinal refinement to questions of international law’s legitimacy and effectiveness. The system’s credibility depends less on establishing an absolute legal ceiling that no state can breach and more on creating enforcement symmetry, institutional accountability, and transparent hierarchy. Current practice treats jus cogens mutability as unspeakable, relegating the question to academic margins while practitioners navigate contradictions through silence and ambiguity. This approach may preserve short-term stability, but it undermines long-term confidence in international law’s capacity to address genuinely novel challenges. The international legal community should instead develop explicit theory about the relationship between hierarchy, enforcement, and legitimacy, acknowledging that no doctrinal fix can substitute for political commitment while recognizing that clearer doctrine would strengthen rather than weaken the normative foundations on which such commitment depends.

Sources: WMO State of the Global Climate 2024, UN General Assembly AI Resolution 2024, UN Disarmament Cyber Process, The Ethics of State Consent to International Law – Cambridge, The Limits of Consent in International Law – Oxford University Press

Five Canonical Jus Cogens Norms Recognized in International Law

Peremptory Norm	Core Prohibition	Primary Legal Instruments
Prohibition of Genocide	Intentional destruction of national, ethnic, racial, or religious groups	1948 Genocide Convention, Rome Statute Article 6
Prohibition of Slavery	Ownership, trade, and exploitation of human beings as property	1926 Slavery Convention, ICCPR Article 8
Prohibition of Torture	Intentional infliction of severe pain for punishment, coercion, or intimidation	1984 Convention Against Torture, Geneva Conventions Common Article 3
Prohibition of Aggressive War	Use of armed force against territorial integrity or political independence of states	UN Charter Article 2(4), Rome Statute Article 8 bis
Right to Self-Determination	Peoples’ right to freely determine political status and pursue development	UN Charter Article 1(2), ICCPR Article 1

Comparative Analysis: Legal Mechanisms for Norm Creation and Modification

Mechanism	Consent Requirement	Modification Process	Theoretical Reversibility	2024-2025 Examples
Treaty Amendment	Explicit consent of state parties; new states may accede or decline	Formal negotiation, signature, ratification per treaty provisions	Fully reversible through withdrawal or subsequent treaty	Paris Agreement Article 6 negotiations; WHO pandemic treaty discussions
Customary International Law	Consistent state practice plus opinio juris among relevant states	Gradual shift through changed practice and expressed legal belief	Theoretically modifiable through new contrary practice over time	UN OEWG cyber norms development; AI governance frameworks emerging
Jus Cogens Alteration	Declared to require subsequent peremptory norm of same character	No established procedural mechanism; unanimity deemed insufficient	Doctrinally immutable regardless of universal state agreement	No modifications attempted; ILC codification reaffirms non-derogability

Framework of Institutional Responses to Jus Cogens Abolition Question

Response Option	Doctrinal Implication	Institutional Risk	Observed Frequency
Option A: Admit theoretical amendability	Collapses jus cogens/ordinary law distinction	Undermines normative hierarchy	Rarely adopted
Option B: Claim conceptual immunity	Contradicts consent-based sovereignty theory	Exposes non-consensual system apex	Occasionally implied
Option C: Strategic silence	Preserves ambiguity on foundational questions	Defers rather than resolves tension	Dominant approach

Decision Tree: Three Doctrinal Paths for Jus Cogens and Universal Consent

Doctrinal Model	Core Premise	Treatment of Universal Consent	Implications for Emerging Domains
Constitutional Immutability	Jus cogens operates as higher-order law above ordinary consent-based processes	Universal consent cannot modify peremptory norms; would require constituent power the system lacks	AI, cyber, and climate norms would require formal elevation to constitutional status through undefined mechanism
Hegemonic Enforcement	Jus cogens persists because powerful actors enforce it, not through pure principle	Universal consent could theoretically modify norms, but power asymmetries prevent genuine universality	Emerging domains will reflect interests of dominant states and institutions rather than universal values
Legitimacy-Based Aspiration	Jus cogens derives authority from collective belief rather than binding enforcement	Universal consent could erode legitimacy, effectively dissolving peremptory character	New domains require legitimacy-building before formal legal status; enforcement follows rather than precedes acceptance

Hypothetical Analysis: Universal Vote to Amend Genocide Prohibition

Legal Interpretation	Doctrinal Consequence	System Outcome
Legitimate Law-Making	Vote reflects valid exercise of collective state sovereignty	New norm replaces old; international law continues with modified content
Regime Collapse	Vote exceeds system’s self-modification capacity	International law as currently constituted ends; replacement system required
Conceptual Incoherence	Vote represents logical impossibility regardless of participant numbers	Result has no legal effect; pre-existing norm continues

Frequently Asked Questions

What does jus cogens mean and why are these norms considered supreme?

Jus cogens is a Latin term meaning ‘compelling law’ and refers to peremptory norms of international law from which no derogation is permitted. These norms are considered supreme because they represent fundamental values that the international community has recognized as non-negotiable, including prohibitions on genocide, slavery, torture, and aggressive war. Unlike ordinary international law, jus cogens norms cannot be set aside by treaty or bilateral agreement between states.

Why do scholars and courts avoid addressing whether unanimous state consent could abolish jus cogens norms?

Scholars and courts avoid this question because it exposes a fundamental tension in international legal theory. Addressing it directly would require either admitting that jus cogens supremacy is contingent on continued state support, which undermines claims of absolute hierarchy, or identifying a non-consensual foundation for international law, which contradicts the dominant consent-based framework. The question is treated as doctrinally dangerous because neither answer preserves the current theoretical structure.

How does ongoing ILC codification work relate to the jus cogens paradox?

The International Law Commission’s 2024–2025 work on jus cogens identification demonstrates that the recognition and scope of peremptory norms continue to evolve through international consensus. This ongoing development contradicts the notion that highest norms are permanently fixed, intensifying the paradox. If states can collectively expand the jus cogens catalogue through recognition, the question of whether they could also contract or modify it becomes more pressing and difficult to dismiss as purely theoretical.

Why does near-universal participation count as sufficient for international law when it is not truly unanimous?

International law operates on practical rather than philosophical standards of universality. Customary international law requires consistent practice among states whose conduct is relevant to a particular norm, while institutional law like the UN Charter binds members through accession rather than line-by-line negotiation. The system treats broad participation as functionally equivalent to universality because requiring absolute unanimity would render international law-making impossible given the continuous changes in state composition and the existence of disputed territories.

How do emerging areas like cyber governance and artificial intelligence demonstrate consent-based law-making in action?

The UN Open-ended Working Group on information and communications technology security and the 2024 General Assembly resolution on AI governance illustrate that states continue to create international norms through iterative consensus processes. These mechanisms show consent operating as an ongoing dynamic rather than a single historical event, with states negotiating frameworks, expressing positions, and gradually establishing expectations that may crystallize into binding obligations over time.

What is the theoretical distinction between creating new international law through consent and abolishing existing peremptory norms through consent?

The distinction rests on the doctrine that jus cogens norms transcend ordinary consent-based law-making once established. While states may freely create new treaties and contribute to evolving custom, peremptory norms are declared immune from modification except by subsequent norms of the same character. This creates an asymmetry where the consent mechanism that identifies jus cogens cannot, doctrinally, reverse that identification regardless of unanimity.

Why do international courts avoid ruling on whether jus cogens norms can be modified by universal consent?

International courts avoid this question because any definitive answer creates doctrinal problems. Affirming that universal consent could modify jus cogens would eliminate the distinction between peremptory and ordinary norms. Denying this possibility would require admitting that international law has a non-consensual apex, contradicting sovereignty-based theories. Strategic silence allows courts to maintain the appearance of hierarchy without subjecting it to logical scrutiny.

What role does enforcement asymmetry play in institutional reluctance to address jus cogens theory?

Enforcement asymmetries, including selective ICC warrant compliance and Security Council double standards, have already damaged international law’s credibility. With 123.2 million persons forcibly displaced according to UNHCR data, legal frameworks are manifestly failing. In this context, jus cogens serves as one of the few remaining conceptual anchors suggesting that international law operates according to principle. Admitting theoretical vulnerability would compound existing legitimacy deficits.

If all 193 UN member states voted to abolish the jus cogens prohibition on genocide, would the vote be legally valid?

The answer depends on which foundational theory one accepts. Under strict consensualism, the vote would constitute legitimate law-making. Under constitutional theories of jus cogens, the vote would exceed the system’s self-modification capacity. Under extra-consensual theories, the vote would be logically impossible because the prohibition derives from moral necessity rather than state agreement. Current international law provides no definitive answer to this question.

Why does the distinction between legal possibility and political feasibility matter for jus cogens theory?

Legal doctrine cannot coherently rely on political impossibility to avoid theoretical contradictions. While universal consent to abolish fundamental human rights protections is empirically unlikely, legal theory must still explain what the system’s rules would say if such consent occurred. Treating impossibility as a solution conflates descriptive observations about state behavior with normative claims about legal authority.

How do emerging governance challenges like AI and climate change affect jus cogens theory?

New domains may require normative protections analogous to existing peremptory norms, forcing the international community to either clarify the theoretical foundations of jus cogens or develop parallel governance structures that bypass traditional categories entirely. The absence of clear doctrine about hierarchy, enforcement, and legitimacy creates uncertainty about how to establish binding obligations when consensual approaches prove insufficient.

Conclusion

The jus cogens paradox exposes a fundamental tension at the heart of international law: peremptory norms claim absolute supremacy while deriving authority from the same consent-based processes that create ordinary law. Courts, scholars, and institutions have responded through strategic silence rather than theoretical resolution, recognizing that any definitive answer threatens systemic stability. As emerging governance challenges in AI, cybersecurity, and climate demand clearer normative foundations, this constructive ambiguity may prove increasingly untenable.

Recommendations:

• International legal scholars should explicitly distinguish conceptual immutability from political impossibility when analyzing jus cogens authority, rather than conflating the two to avoid difficult theoretical questions
• The International Law Commission should address the consent paradox directly in its ongoing codification work, acknowledging whether jus cogens norms transcend their consensual origins or remain theoretically subject to unanimous modification
• Practitioners and advocates should recognize that jus cogens invocation operates within a system of constructive ambiguity, where the norms’ rhetorical force depends partly on unresolved foundational questions that institutional silence has preserved

Sources

1. ILC Jus Cogens Topic Page
2. The Ethics of State Consent to International Law – Cambridge
3. The Limits of Consent in International Law – Oxford University Press
4. UN Member States
5. UN Disarmament Cyber Process
6. UN General Assembly AI Resolution 2024
7. State Consent and Disagreement in International Law-making – Cambridge
8. Statement of the Prosecutor of the International Criminal Court on arrest warrants
9. UNHCR Global Trends 2024
10. UN Peacekeeping Facts and Figures
11. WMO State of the Global Climate 2024

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