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Buffalo Human Rights Law Review

First Page

1

Document Type

Article

Abstract

This article explores the challenge faced by positivist schools of law in integrating the concept of jus cogens within their systematic legal frameworks. By comparing the theories of Schwarzenberger and Kelsen, it demonstrates that Positivism is not a monolithic representation of the traditional international regime of consent. Utilizing a doctrinal legal research methodology, the study draws upon authoritative sources, including legal scholarship, case law, and conventions related to the prohibition of torture and genocide. The article traces the origins and development of jus cogens, examining its connections to post-war Germany and Austria, and its universalistic Christian roots. Analyzing doctrinal and case law on the prohibition of torture and genocide, the study assesses whether these peremptory norms reflect an international moral source within the international legal system, concluding affirmatively. The Committee Against Torture's (CAT) usage of the concept of "human dignity" and the International Court of Justice's (ICJ) positions on the Genocide Convention, the Nuclear Weapons Advisory Opinion, and the 1996 Bosnian Genocide Case illustrate the use of abstract metalegal principles to underscore the significance of these prohibitions. The article concludes by acknowledging the limitations of the current research and the necessity for further studies to understand the impact of metalegal norms on diverse legal traditions and to address criticisms from other legal doctrines.

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