In this chapter, the problematic of exceptions to peremptory norms is investigated in view of the defining feature of jus cogens rules as not admitting of derogation. This problematic appears singularly concerned with exceptions to the prohibition of the use of armed force, since that prohibition is regularly claimed to constitute a peremptory norm but admits of exceptions. Different legal constructions have been proposed to explain why exceptions would not amount to derogation. One construction, logically coherent but not (fully) borne out by positive law, is to see exceptions as limiting and lying outside of the substantive scope of a general rule and thus not amounting to derogation. Another construction concerns the claim that the prohibition of the use of armed force is not a jus cogens rule but rather the prohibition of aggression. As such, exceptions such as self-defence, force pursuant to a Security Council authorization, and consent would not amount to derogation, since they would not entail the commission of aggression. This construction would allow for the conclusion that peremptory prohibitions are absolute in character and not subject to exception or justification. Circumstances precluding wrongfulness, as general exceptions, appear to qualify as derogation, since Article 26 of the Articles on the Responsibility of States bars their invocation when conduct would be contrary to a peremptory norm. Finally, a narrow interpretation of the word derogation, as being involved only when states attempt to legalize or justify conduct in relation to already existing, concrete circumstances, could also explain why exceptions to peremptory prohibitions may be considered admissible.
HAK ASASI MANUSIA SEBAGAI JUS COGENS DAN KAITANNYA DENGAN HAK ATAS PENDIDIKAN
