Klaus J (2021)
Publication Language: English
Publication Type: Journal article, other
Publication year: 2021
Book Volume: 11
Pages Range: 89-143
Journal Issue: 1
URI: https://www.gojil.eu/issues/111/Klaus_Final.pdf
DOI: 10.3249/1868-1581-11-1-klaus
Open Access Link: https://www.gojil.eu/issues/111/Klaus_Final.pdf
International legal scholarship and practice have reached a point where it is
undisputed that the prohibition of genocide has the status of jus cogens and entails
erga omnes obligations. It is, however, astonishing how little academic focus has
been dedicated to the normative development leading to this extraordinary rank.
In a legal regime with as little hierarchical structure as public international law,
examining the birth process of such a norm promises considerable insights into
normative formation in general and may inform jurisprudential theories on the
nature of international law. This article illustrates the evolution of the prohibition
of genocide by outlining the way to the 1948 UN Genocide Convention and the
later interpretations of the norm. It traces the origin of the genocide prohibition
to naturalistic ideas of overarching laws of humanity in international law and
follows its development into the early 21st century. An analysis of international
jurisprudence reveals that, after the jus cogens status of the prohibition of
genocide and its erga omnes dimension had been settled, international judges
handled the norm in a surprisingly lackadaisical and perfunctory manner. The
very recent ICJ order on provisional measures in the Myanmar Genocide case
potentially marks a return towards a deeper focus on moral facts determining
the prohibition that point to naturalistic theories persisting, notwithstanding the
positivistic mainstream approaches to international law. The article contributes
to a more accurate picture of and greater academic interest in these naturalistic
undercurrents.
APA:
Klaus, J. (2021). The Evolution of the Prohibition of Genocide: From Natural Law Enthusiasm to Lackadaisical Judicial Perfunctoriness – And Back Again? Goettingen Journal of International Law, 11(1), 89-143. https://dx.doi.org/10.3249/1868-1581-11-1-klaus
MLA:
Klaus, Julia. "The Evolution of the Prohibition of Genocide: From Natural Law Enthusiasm to Lackadaisical Judicial Perfunctoriness – And Back Again?" Goettingen Journal of International Law 11.1 (2021): 89-143.
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