45. And the International Court suggests in the Case concerning the Arrest Warrant of 11 April 2000 that ‘a true universality principle’ must lack ‘territorial or nationality linkage’.99 Can we identify duties to the ‘international community’ without understanding a sense and the possibility of an international community which exists as if the territorial boundaries of state members are transparent? Violence risks being the consequence as we impose our categories – perhaps we even call them peremptory norms – over iterative social experiences in the name of a reified ‘international community’. Keywords: See Foucault, ‘What is an Author?’, in P. Rabinow (ed. Indeed, could consistent state practices evidence a customary norm which renders Article 53 of the Vienna Convention void? All this reification transpires as if the peremptory norms of the international community are binding by virtue of the consent of states. 48, Comm. This condition precedent for a peremptory norm addresses a very different issue from the sources thesis. For other American cases see Randall, ‘Universal Jurisdiction under International Law’, 66 Texas L. Rev (1988) 785, at 789–790. Franck, Legitimacy among Nations, supra note 73, at 202–203.

A/56/10 (Supp) (23 Apr –1 June and 2 July–10 Aug. 2001) (adopted by the ILC, 53rd Sess., 2001), reprinted in Crawford, supra note 9, at Art. 9, pmbl., UN Doc. The binding character of a legal norm addresses the relation of such a norm to the ethnos in which it is nested. For examples from other jurisdictions see, e.g., Catholic Commission for Justice and Peace in Zimbabwe v. Attorney-General of Zimbabwe and Others, Judgment No. And yet, the Court has failed to explain the point in time when a peremptory norm emerges, nor has the Court explained why.30 Officials are held open to prosecution for an offence against a peremptory norm in Arrest Warrant Case of Congo Official and, yet, one remains unenlightened as to what it is about the international community which renders such a norm peremptory.31 Even the ILC’s study of state responsibility accepts the existence of peremptory norms without pressing further as to why this or that norm is so peremptory.32 Once a peremptory norm is said to be identified as a right traceable to one of the sources accepted in Article 18 of the Statute of the International Court, our role, as lawyers, seems complete. The rite of passage through an international strait, for example, has been considered to be analogous to a peremptory norm in that the right protects the international community independently of any treaty.104 In the 1951 Reservations to the Genocide Convention, for example, the International Court explained that the parties to a human rights treaty ‘do not have any interests of their own; they merely have, one and all, a common interest, namely, the accomplishment of those high purposes which are the raison d’être of the Convention’.105 In the South-West African Cases, Jessup held, dissenting, that ‘[s]tates may have a general interest – cognizable in the International Court – in the maintenance of an international regime adopted for the common benefit of the international society’.106 The Barcelona case, discussed earlier, explained in 1961 that the obligations of a state towards the international community as a whole are ‘the concern of all states’ in contrast with duties owed by one state to another state by virtue of their legal relationship inter se. ‘Solely’, however, was changed to ‘essentially’, thereby reinforcing the inviolability of the inner freedom of the state even in a context where it impacted upon other juridical persons. Hart, Concept of Law (2nd edn, 1994), at 109. Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Provisional Measures [2000] ICJ Rep 182 (Order of 8 Dec.).

The never-ending trace of justifications of the concepts constituting the international community impacts upon the problematics of peremptory norms in a second manner. See also judgment of the Sup. Kirgis, ‘Custom as a Sliding Scale’, 81 AJIL (1987) 146. The actual events of social behaviour of state actors (and of inhabitants inside a state’s territorial control) are forgotten. at para. No. If a state causes grave harm to a peremptory norm, the very possibility of the international legal order is undermined. The international legal order exists whether or not a particular state consents to its peremptory norms. 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. See Report of the International Law Commission, Fifty-third session, UN GAOR, 56th Sess., Supp. For a close application of this requirement for customary norms see Henckaerts, ‘Study on Customary International Humanitarian Law: A Contribution to the Understanding and Respect for the Rule of Law in Armed Conflict’, 87 Int’l Rev Red Cross (2005) 175, at 175–212.

That said, there is a universality (or imperial character) about the rational community so that those who do not participate (that is, those who lack a ‘sense of integrity’) are excluded from the rational community. The issue may be put this way. South West Africa, Second Phase (Ethiopia v. South Africa; Liberia v. South Africa) [1966] ICJ Rep 373 (dissenting opinion of Judge Jessup). at para. Frowein documents several contexts where peremptory norms entertain a duty of third parties to challenge or punish a state party: see Frowein, ‘Obligations Erga Omnes’, in Bernhardt (ed. The international (and domestic) legal order is analytically prior and anthropologically prior in time to the state’s acts. And yet, according to Article 61 of the Vienna treaty, the peremptory norm may emerge in the future and, by so doing, ‘terminate’ the treaty as ‘void’.8 If a peremptory norm changes through time, how and why is it peremptory? The ILC and the Committee of the ICCPR have asserted that peremptory norms are owed to individual human beings.53 Why individual beings and not groups and other entities, as suggested by Malanczuk? Once we contextualize a peremptory norm in terms of its identity as a self-standing rule, though, more issues are left unsettled than jurists have taken for granted. Prosecutor v. Anto Furundzija, Case No. This is so despite the claim that both requisites of the implied consent theory, the sense of obligation and state practices, are generated from social behaviour. Does an international community which defers to such a freedom of its members necessitate the exclusion of individuals or groups or societies from the community? 1968 with a new Preface by author). I draw here from Hegel’s theory of international law, as hinted elsewhere.18 My claim is that a peremptory norm protects such an ethos and, in particular, the legal order of such an ethos. See, e.g., Besson and Tasioulas, supra note 15; J.L. To be sure, state consent and justificatory argument are elements of the ethos of the contemporary international legal order. 91, at 47. The community does not exist for its members. Who, then, are the members of the international community if the community exists independently of the members and yet for the members?

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