Conklin, William E., "The Peremptory Norms of the International Community," The European Journal of International Law Vol. 23 no. 3 ©The Author, 2012. Published by Oxford University Press on behalf of EJIL Ltd.
Windsor Law Faculty Author: William E. Conklin
This article claims that the quest for the identity of peremptory norms in terms of sources is misdirected. Instead of the identity of a discrete rule or right of international law, one needs to examine why a peremptory norm is binding. The latter issue addresses the referent of the identity issue: namely, the international community as a whole. Various significations of the latter are recognized and found wanting. The article examines three general forms of the international community: the community as an aggregate of inter-dependent states, the community as a rational construction, and the community as a social-cultural ethos independent of members and yet for the members. The first two forms are found wanting. First, they presuppose that a state is a self-creative author expressing its own will. Secondly, the community is reified vis-à-vis the social-cultural ethos in which the community is immersed. Thirdly, the community is exclusionary. The three problems take for granted that a territorial-like boundary separates outsiders from between insiders. The article concludes that the notion of an international community needs excavation before jurists can be assured that peremptory norms exist and why they exist.