In Nicholas Onuf’s account of the constitution of international society, key explanatory weight is carried by two sets of constitutive rules that he labels “primary” and “secondary.”2 He takes this formulation from the system H. L. A. Hart detailed in The Concept of Law.3 In the simplest terms, the former are the specific rules—prescriptive and prohibitive—governing the conduct of agents. The latter are rules governing rules—the rules for the creation and change of rules.4 This typology neatly captures things, but there is a subspecies of primary rules that bears special attention for the unique role it plays in the constitution of international society—indeed of all societies. Among primary rules, rules of categorical, peremptory character, jus cogens, play a special role in the constitution of any society. More so than rules of a quotidian, dispositive character, jus cogens rules identify what it means to be part of a society. Adherence to these rules—if not in foro interno adherence to the values underlying them—is a sine qua non condition of membership in the society defined by those rules.
KeywordsInternational Society International Crime Universal Jurisdiction Vienna Convention Kantian Ethic
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- 3.H. L. A. Hart, The Concept of Law 2nd ed. (Oxford: Oxford University Press, 1961 ), 79–99.Google Scholar
- 5.Both “Positivism” and “Voluntarism” are terribly vexed terms; as they will figure prominently throughout, some preliminary clarification is in order. As it will be used here, Positivism refers generally to its usage in legal theory; in that context, it denotes laws that have been set out—posited—by human lawmakers, rather than being intrinsic to the natural order (Natural Law) or ordained by god (Divine Law). Having been posited, there will always be some form or another of evidence of the law and its content. Positivism also tends toward a separation of law and ethics—again in distinction from naturalism. “Voluntarism,” as it is used in international law, is related doctrinally to Positivism; it holds that legal obligation over an agent can only be created by the consent of that agent, that is, for a state to be legally bound it must have consented (willed) to be bound. On the term’s usage in ethics, see J. B. Schneewind, The Invention of Autonomy (Cambridge: Cambridge University Press, 1998), 8–9, 21–36, 95–100;Google Scholar
- 6.Höffe uses the term “categorical principle” in a slightly different context. Ottfried Höffe, Categorical Principles of Law, trans. Mark Migotti (University Park: Penn State Press, 2002).Google Scholar
- 7.Immanuel Kant, Groundwork for the Metaphysics of Morals (1785), 4:414–421.Google Scholar
- 9.This understanding comports up to a point with Kelsen’s idea of the Grundnorm. He does not attribute peremptory status to the Grund-norm, but assigns it a more narrow functional role. Hans Kelsen, Pure Theory of Law 2nd ed. (Clark: The Lawbook Exchange, Ltd., 2005 ), 8, 193–195.Google Scholar
- 10.On the circumstances precluding wrongfulness for violating an international obligation see the Articles on the Responsibility of States for Internationally Wrongful Acts (2001), Articles 20–26; Lauri Hannikainen, Peremptory Norms in International Law (Helsinki: Finnish Lawyers’ Publishing Company, 1988), 249–257.Google Scholar
- 14.There is a strand of contemporary international punishment that does involve the punitive use of force; the matter is expertly discussed in Anthony F. Lang, Punishment, Justice and International Relations: Ethics and Order After the Cold War (London: Routledge, 2008).Google Scholar