ERNEST PETRIČ CYIL 7 ȍ2016Ȏ is not comprised of States alone. To achieve jus cogens it does not suffice for the States to reach only a consensus (whatever type it may be), a majority, a qualified majority, unanimity of all – but a consensus of the “international community”, which is broader, since the modern international community does not include only States but also international organizations and other subjects, even individuals. Even if we adopted the so-called consensualist approach to jus cogens , we could only talk about an extremely broad consensus, which cannot reflect only the will of States, their larger or smaller “majority”, but a broader consensus that also includes other subjects of international community. Besides the fact that “consensus” is reflected in treaties and customary international law, it must also be expressed in general legal principles, in international and national case law, and in the prevailing legal theory. 11 There must be a very general, broad consensus for a certain norm or principle to be jus cogens . Within this broad consensus, which is, ultima ratio , the expression of a consensus on fundamental, undisputed values of a society and the international community that has attained a certain level of civilizational development, there can be no room either for “reservations”, for example, or for some “regional jus cogens ” or a “persistent objector”, which is otherwise possible in regarding treaties or customary international law. In other words: jus cogens cannot be found or identified outside the formal sources of international law. However, considering the specific nature of jus cogens , the consensus in the sense of Article 53 of the VCLT must here be understood and implemented as broadly as possible. Once the norms and principles of international law have been accepted as jus cogens , they are namely no longer in the realm of the free will of States that the latter could form at any given time. Due to the fact that States cannot simply derogate jus cogens by expressing their free will at any given time, as clearly derives from the VCLT and is the very essence of the “quality” of jus cogens , jus cogens exists separately, outside of the scope of the will of States as expressed at any given time. The “consensus” behind the norms and principles of jus cogens should therefore be as broad and lasting as possible. It should be the consensus of the entire “international community”, which is broader than a consensus of States. The legal theory on the nature and effects of jus cogens and the norms and principles of international law that are jus cogens is extensive. Particularly with regard to the theory supporting the consensualist approach to jus cogens and which evidently prevailed also when Article 53 of the VCLT was drafted and also in the subsequent mentions of jus cogens in international instruments, it should be stressed that if we limit ourselves to a “consensus of States”, in whatever manner we have defined it and tried to further qualify and detach it as much as possible from the scope of will of States formulated at any given time, jus cogens still remains within the domain of 11 On the particularly important role of the case law and legal theory in identifying jus cogens see M. SAUL, Identifying Jus cogens Norms: The Interaction of Scholars and International Judges, in: Asian Journal of International Law , 5 (2015), pp. 26-54.