Chapter 6. Actio Popularis, Jus Cogens, And Offenses Erga Omnes?
In: International Humanitarian Law: OriginsSearch for other papers by Alfred P. Rubin in
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Abstract
This chapter talks about flaws in jus cogens argument. First, it is not at all clear that the restrictions on jurisdiction-to-adjudicate are not part of the jus cogens of the international legal order: rules that cannot be changed by treaty. The most persuasive of the arguments supporting universal jurisdiction-to- adjudicate over offenses erga omnes seems to rest on the notion of the international community of states conforming to 18th-century European notions of the international community being itself a civil society, and its legal enforcement and adjudication system being analogous to that of a single state. In sum, it appears that current legal theories resting on an asserted universal jurisdiction in the organs of the international community are the product of good- hearted thinking but cannot work as expected in the world of affairs.