EJIL : Debate!

• Conklin, William E.

Abstract

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.