The Emergence Of Jus Cogens: A Dynamic Perspective

After the World War ?,especially since the adoption of the Vienna Convention on Law of Treaties,jus cogens has become one of the main issues of international law during recent decades.Nowadays,the rationality and necessity of jus cogens has been accepted and recognized by the international community of States as a whole which regards jus cogens as the most significant international law norms because of its universality,peremptoriness and non-derogation.However,jus cogens still keeps its paradox notwithstanding the acceptance and recognition of international community.Historically,having been ignored until the first half of the 20 th century,jus cogens has gradually been determined after the research of International Law Commission on the topic “law of treaties”.Logically,several certain norms with the jus cogens character has been concluded,and some scholars,even some States hold the view that it's time to codify the list of jus cogens,while international community does not reach the consensus on the fundamental ontological issues,inter alia,the identification,definition and nature of jus cogens.A long history means jus cogens could have owned a profound theoretical basis,and the universal recognition means jus cogens would have a broad space for development.However,today jus cogens has been lost in the mists of ontology with its castle-in-the-air development and unsteadiness of foundation.Fortunately,international community has noticed this question.Not only scholars focus on jus cogens,but also the International Law Commission decided to place the topic “jus cogens” on its long-term programme of work.Meanwhile,including China,many States have also made their statements on jus cogens.All these show that it is the key stage of the development of the jurisprudence and theory of jus cogens now.As a responsible power,China should deal with jus cogens properly,seize the opportunity,and gain discourse power by putting forward rational and specific theory on jus cogens in order to ensure China's influence on international legal system and keep the stability and development thereof.In this process,the crux of the matter is ontological analysis of jus cogens,which will lead to the definition and identification of jus cogens.From a dynamic perspective,the aforementioned issue requires the clarification of the emergency of jus cogens.During this process,analysis of the relation between jus cogens and the sources of international law is of significant,and the critical reference and absorption of existing research approaches will help to determine the ideals and directions.Generally,the emergency of jus cogens needs two phases,i.e.,the preparatory phase and the value-added phase.Firstly,in the preparatory phase,it is necessary for norms of international law which belong to different kinds of sources of international law to become general customary international law which is the normative foundation of jus cogens,i.e.,the primary requirement of becoming jus cogens is to meet the criteria of general customary international law in the normative perspective.But the aforementioned requirement does not equate general customary international law with jus cogens.Secondly,in the value-added phase,norms of international law will be evaluated by international community,and only those that maintain the fundamental operation and development of international relations,international peace and security in international community,and those that enshrine the rights and values of human beings which are the cornerstones of the States-Individuals relations,are able to recognized and accepted as jus cogens by the community.Thus,jus cogens is differentiated from normal norms of international law,which means not all the general customary international law could become jus cogens.In conclusion,the preparatory phase aims at the emergency of normative foundation of jus cogens,and the value-added phase aims at sublimating norms with the aforementioned normative foundation into jus cogens.Therefore,jus cogens needs not only substance of norms,but also the necessity in international community.This is the emergency of jus cogens.