El Unificador Fragmentado. La fenomenología de las normas de ius cogens en un contexto de cambio

Abstract

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Ius cogens represent –notwithstanding the great attention directed to them– an irresolvable issue in International Law’s phenomenology. The fascination attached to this legal category lies in its ability to reflect all sorts of theoretical implications to every other institution/phenomena of International Law. For example, there is a very evident interplay between Jus Cogens norms and the fragmentation of International Law, and this linkage can be traced as well in other numerous legal constructions, with effects that question the very essence of our discipline. In a context like this, can we still understand the sources of international law in a traditional way, specially, after the practice of adjudicatory bodies accepting the emergence of Jus Cogens in a very unique fashion? Is the traditional conception of the sources of International Law enough to explain this legal category? Can we conclude that Jus Cogens norms represent cus¬tomary products, as many prominent authors defend? Or are these, Principle of International Law? In the end, it is correct to allow the existence of a blurred category and at the same time hope, somehow, the transformation of International Law? The following lines will be devoted to sketch some answers to these questions and to explain in some extent the nature of these norms.

Keywords

jus cogens, International Public Order, Sources of International law, Principles of International Law