Also see Forti v. Suarez-Mason, 694 F. Supp.

Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Provisional Measures [2000] ICJ Rep 182 (Order of 8 Dec.). But see MacDonald, ‘The International Community as a Legal Community’, in ibid., at 869. And yet, the consequence, as with the implied consent approach, is that the peremptory norms risk being reified vis-à-vis the ethos of the international community.

Cf., e.g., the Kantian views accepted in Perreau-Saussine, ‘Immanual Kant on International Law’, in Besson and Tasioulas, supra note 14, at 53–75 with the Hegelian view in Conklin, supra note 18, at 162–187, 270–298. Article 48 of the ILC’s Articles on State Responsibility extends the protection of peremptory norms to entities and persons ‘other than injured States’.9 Indeed, the commentary to Article 48 asserts that a peremptory norm may be harmed even though ‘no state .

Green H. Hackworth stated in 1943, e.g., that the alien was warranted a standard of protection that was ‘essential to the community of nations’: G.H. Contemporary analytical jurisprudence offers great weight to this first sense of an international community.62 What renders this community legitimate, we are advised, is the express (in the case of treaties) and implied (in the case of customary norms) consent of a state. Thirdly, the community is exclusionary. Various concerns have been expressed about this endeavour.21 The concerns have focused upon how peremptory norms can be identified in customary norms. Conklin, ‘The Myth of Primordialism in Cicero’s Theory of Jus Gentium’, 23 Leiden J Int’l L (2010) 479. The consequence is that instead of clarifying the identity of a peremptory norm, the diverse sources open the door for the expert knowers of legal rhetoric to conclude, without more, which norms are peremptory. States, though unharmed individually, may generally lay a claim of harm to the international community as a whole. R v. Bartle [1999] 2 All ER 97, [1999] 2 WLR 827 (HL). The challenge presented to us is to understand the relation of peremptory norms in a manner in which the international community is independent of the aggregate of the wills of states and yet nested in the ethoi of the international community. 4, at 210. The very preoccupation of Anglo-American legal reasoning with doctrines and rules, both being the products of acts of intellectualization, once again risks reinforcing the territorial boundary of the members of the international community. 74 and 75), Advisory Opinion OC-2/82, 1982 Inter-Am. 3, at 209. Prosecutor v. Anto Furundzija, Case No. 33, Comm. In sum, a peremptory norm exists independently of state members of the international community, and yet for those very members because, without the peremptory norm, there would not be a (domestic or international) legal order of which the states are legal entities.

Its members enjoy a special status.85 The international community is ‘structured’ and centrally organized in contrast to ‘unstructured, standardless interactions between actors’, according to Franck.86 Acts of intellectualization are ‘our critic not our mirror’, Dworkin adds.87 All this transpires in the name of the international community which is believed to represent the whole.

), Encyclopaedia of Public Int’l Law (1997), iii, at 511, 518. 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. Such a misdirected inquiry concerns the legal duty reciprocally associated with an individual right. Published by Oxford University Press on behalf of EJIL Ltd. All rights reserved.

What is this international community in whose name states and non-states owe obligations and in whose name individuals and groups are conferred rights? ), Issues in Contemporary Legal Philosophy (1986), at 81, 99–104. The kernel to this theory rests on the presupposition that a state is an author,63 the author is self-generating,64 and a law is binding if it has been authored in the proper manner and form.

However, one can still find the criterion of ‘civilized nation’ in relatively recent cases: see, e.g., Application of the Convention of 1902 Governing the Guardianship of Infants (Netherlands v. Sweden) [1958] ICJ Rep 55, at 92 (separate opinion of Judge Sir Hersch Lauterpacht). This sense of ethicality is elaborated in Conklin, supra note 18, at 167–187.

Are the sense of obligation and the state behaviour material if a domestic governmental structure is occupied by tyrants? See, e.g., Crawford, ‘Introduction’, supra note 9, at 40; Art. The international community ‘as a whole’ is not just for its members but also independent of its members. This chapter begins by focusing on the impact of jus cogens on the law of reparation: the duty to provide restitution, compensation, and satisfaction to redress the wrong caused to States and their nationals. Case concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium) [2002] ICJ Rep 3, at paras 31, 45, 46, per Higgins, Kooihmans, and Buergenthal. Further, what is the threshold for the weightiness of state behaviour? The consequence is an international legal order which directly or indirectly varies with the arbitrary wills of the state members.

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