Articles

• de Wet, Erika

Abstract

The article explores the validity of the Furundzija dictum in accordance with which jus cogens has to bind the state in its treaty relations and with respect to acts of the legislature, executive and judiciary. It mainly focuses on the implications of the prohibition of torture as a limitation to the national (constitutional) legislative process (an ‘internal manifestation’ of jus cogens), as well as to national legislation pertaining to sovereign immunity (an ‘external manifestation’ of jus cogens). The article also gives some indication of the role of jus cogens in determining the applicable law in conflict of law disputes and in fulfilling the double criminality requirement in extradition proceedings. In the process, it reflects the highly complicated nature between jus cogens and national law. For example, whereas the ‘internal manifestation’ can result in a strengthening of international norms within the national legal order, the ‘external manifestation’ has the potential to undermine the binding character of general international law, or even destabilize the international legal order itself. The article also exposes an emerging hierarchy of norms in international law, which is underpinned by a deepening of the international consensus pertaining to the content and hierarchical order of the international value system.