jus cogens could therefore lead to the termination of a treaty or agreement between States to the extent that they were incompatible with those principles or norms. The focus on the ethics of the international community examines why a State or non-State is bound by the legal order of the international community. The search for the identity of a legal norm in relation to its source is erroneous when it comes to the ethics of the international community. The international community „as a whole“ is not only for its members, but also independent of its members. Such a possibility arises when we understand compelling norms immersed in socio-cultural ethics. Mandatory standards protect the ethics of an international community. Fundamentally, the acts of intellectualization of the jurist reify what we might otherwise consider an international community if we do not associate such actions with the ethics in which we find ourselves. This philosophy is what is objectified when officials approach a compelling norm as if it were a discrete and distinct concept, the justification of which lies in one of the State-centric sources of the modern international legal order. A legal discourse that revolves around such a search for the identity of an independent norm misjudges the question of whether the norm is binding in a legal system. As H.L.A. Hart once explained in a forgotten passage, a „social bond [is emphasis] binds the obligated person.
[Emphasis added] which is buried in the word „obligation.“ [T]he figure . continues [emphasis added] many legal considerations.“ 120 A peremptory norm requires that its relationship with the idea of an international community itself be thorough. This relationship between a peremptory norm and the international legal order brings us back to the discourse of laws. If a member of the polis were allowed to violate a law, according to the laws, the existence of the entire legal system would be called into question (Krito 50b). If members of a so-called community are allowed to torture people, enslave residents, turn a blind eye to mass rape and genocide, and exclude stateless people as members of ethnic groups, can such unity still be said to be a community? Does it presuppose a legal order? The international (and domestic) legal order is analytical before and anthropologically before the actions of the State. Arthur Watts proposes this analytically before the international legal order when he asserts that international crimes „violate the public order of the international community“.101 And Alexander Orakhelashvili asserts that „[t]he very essence of public order in any legal system is to ensure that the public interest, in the face of private transactions motivated by the individual interests of legal persons, 102 Ibid., p. 276. The question of the „legal interest“ of a provision erga omnes is dealt with in Thirlway, loc. cit. Note 56.Returning to the issues with which I have introduced this article, a peremptory norm may emerge or even be replaced by another mandatory norm, as proposed in article 61 of the Vienna Convention, because the ethics of the international community may change over time. Thus, an individual right may initially exist outside the structure of peremptory norms and yet emerge over time as a mandatory norm.103 A social entity may be harmed by a violation of a peremptory norm, even if it is not a member of the international community. Although there is no longer a State that has violated peremptory norms, all members of the international community have a duty to protect and enforce the peremptory norm. When peremptory norms are violated, which would otherwise protect stateless persons, all members of the community have a legal obligation to respect or enforce peremptory norms. A non-State State may bring civil or criminal action even if it has not suffered any loss of compensation. An individual may be harmed by violating the ethics of the international legal order as a whole. Such a person is a beneficiary of the legal system. Human rights are important because of their context and the extent of their relationship to peremptory norms, although beneficiaries may exist outside the international legal structure. Peremptory norms exist as often unwritten pillars of the ethics of an international legal order – unwritten until the existence of the legal order is called into question. Such an assumption and expectation permeate contemporary discourse on international law, namely the territorial boundary of the community`s member states. Such a boundary reinforces the idea that the community is an aggregate of the will of territorial entities.
The international community as an aggregate of wills exists for its members of States and not independently of those wills. The result is an international legal order that departs directly or indirectly from the arbitrariness of the members of the State. Territorially limited wills generate a legal discourse that is objectified against the socio-cultural ethics of the international community. In his book Pure Theory of Law, Hans Kelsen aims to provide a holistic definition of law by embodying a comprehensive analysis of legal normativity and systematic structures. Pure theory represents legal positivism, which makes a clear distinction between the factual „is“ and „what should be.“ Kelsen identifies law as a unique type of social phenomenon, distinguished from others by its specific nature of coercion, thus equating it with a system of norms. But he also stresses the importance of distinguishing law in the factual sense from law in the normative sense, combining his belief in the normative character of law with a methodological dualism. [10] The ILC emphasizes the distinction between the international community, on the one hand, and the common will of all States, on the other, in footnote 13, paragraph 48, CMTS. 5, 6.
Giorgio Gaja also raises the question and reads compelling norms in Gaja, „Obligations Erga Omnes, International Crimes and Jus Cogens: A Tentative Analysis of Three Related Concepts,“ in J.H.H. Weiler et al. (eds.), International Crimes of State: A Critical Analysis of the ILC`s Draft Article 19 on State Responsibility (1989), pp. 152-154. Who are the members of the international community if the community exists independently of the members and yet for the members? According to the International Law Commission, the universality of the international community as a whole includes non-governmental organizations such as the United Nations, the International Red Cross and the European Community. [116] This includes transnational corporations, NGOs, insurgents, minorities, diplomatically and de jure stateless individuals and groups, „peoples,“ and nationals who do not have a minimum level of legal or economic protection. Just as laws affirmed Socrates` dependence on the rule of law, the ILC also affirmed that individuals should be considered „the ultimate beneficiaries“ of the international legal order.117 The healing state does not need to act together or in harmony with other states.118 A peremptory norm protects the possibility of a legal order for the international community as a whole.119 It would certainly be difficult to describe the consent. „Sociological“ or empirical approach.
The content of the rule on regularities of iterative social experiences is irrelevant. As Gerald Postema postulated, „it is tempting to say that, at least for jurisprudential purposes, it does not matter what the reasons for the hypothesis are, but only that it [custom] is accepted“.71 The rule on regularities of social practice is independent of the content of the practices. Real events in the social behavior of state actors (and residents under the territorial control of a state) are forgotten. And what we call a mandatory standard also runs the risk of being objectified by the international community. The community does not exist for its members. Peremptory norms thus become the product of acts of indulgence on other concepts objectified by the ethoy of an international community.
