Regional Jus Cogens: Conceptual Difficulties and Practical Challenges

A regional value-based homogeny could lead to the formation of a regional public order constituted by certain non-derogable absolute norms called “regional jus cogens”. However, due to the absence of any footing in positive international law and scarcity of state practice, only an extremely subjective approach could determine the defining criteria for regional peremptory and its legal consequences. Furthermore, the concept of regional jus cogens conflicts with an essential element of jus cogens paradigm i.e., universality. On a practical level, regional peremptory norms could adversely affect trans-regional legal relations. However, this article argues that under positive international law (particularly regional human rights conventions), there exists special non-derogable norms (such as the prohibition of death penalty in European regime of human rights) which are capable of performing functions assigned to regional jus cogens while benefiting from a more cohesive conceptual status and entailing more plausible practical consequences. In particular, as special non-derogable norms are firmly grounded in positive international law and state practice, determining their defining criteria and legal consequences would be more objective. Furthermore, they do not entail any major disruptive impact on transregional legal relations as special non-derogable norms conceptually depart from jus cogens paradigm preventing any conflict between lex specialis nature of these norms and universality of peremptory norms of general international law.