New challenges for the American lawyer in international human rights

Washington and Lee Law Review, Summer 1998 by Karamanian, Susan L

A. International Law and the Public Good As Professor Henkin remarks, "international non-conventional human rights law is jus cogens, or is like jus cogens, or is likejus cogens."'6 Jus cogens, in turn, reflects "common consensus from which few dare dissent."" Some federal courts have recognized in human rights cases that jus cogens means, as the Vienna Convention on the Law of Treaties said, "a norm accepted and recognized by the international community of states as a whole as a norm from which no derogation is permitted."'8

Jus cogens norms reflect the international community's fundamental values; they are not based on the consent of states.'9 They are so fundamental that they prevail over and invalidate international agreements and other rules of international law that conflict with them.20 They can be modified or derogated only by a subsequentjus cogens norm.2' Norms of jus cogens by definition reflect the public good.