Conklin, William, E., "The Peremptory Norms of the International Community: A Rejoinder to Alexander Orakhelashvili," 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 Paper addresses whether the ethos of peremptory norms shares a ‘consensual positivism’ as generally assumed about the identity of such norms. The Paper argues that such a possibility addresses the identity of a law rather than why an identifiable law has a binding or obligatory character. The ethos in which a peremptory norm is nested addresses the latter issue. Instead of focussing upon the express or implicit consent of a state as the author or source of a law, this Paper argues that the binding character of a peremptory norm rests in the unwritten language constituting an international community as a whole. If states consented to acts which undermined peremptory norms, so too the legal order of an international community would not exist.
Access the article online: http://www.ejil.org/pdfs/23/3/2309.pdf