5 Aug 2016
Improving Compliance: Jus Cogens and International Economic Law
Journal article by Thomas Cottier in Maarten den Heijer and Harmen van der Wilt (eds.) Netherlands Yearbook of International Law 2015, published by Springer, pp. 329-356
The relationship of jus cogens and international economic law has largely remained unexplored, despite close linkages at the inception of jus cogens when slave trade and slavery was banned. The paper expounds the potential of international economic law for the realisation and enforcement of jus cogens, in particular of core labour standards and basic human rights. The right to protect ordre public values in international trade and investment law by means of import restrictions and conditioning investment by host states, respectively, provides an important basis to enforce values protected by jus cogens. However, recourse to process and production methods (PPMs) and conditionalities does not reach jus cogens in a comprehensive manner, and additional remedies need to be developed in international economic law, in particular relating to corporate social responsibility and finance and monetary affairs. Questioning the fundamental civil law distinction of jus cogens and jus dispositivum, the paper submits to conceive jus cogens as a matter of Common Concern of Humankind and to conceptualise protection and enforcement under this emerging doctrine, obliging states to cooperate but also take unilateral action if necessary.