C. Public Order Theories

A third tradition in international legal theory defines jus cogens as public order norms essential to the integrity of international law as a legal system. According to this theory, international law recognizes certain imperative norms as hierarchically superior to ordinary conventional and customary law in order to promote the interests of the international community as a whole and preserve international law's core values against fragmentation. According to public order theories of jus cogens, all peremptory norms serve one of two functions: they either safeguard the peaceful coexistence of states as a community or honor the international system's core normative commitments.[1]

Insofar as public order theory envisions jus cogens violations as offenses against the international community as a whole, this approach places peremptory norms in close proximity to erga omnes rules—offenses that give rise to generalized state standing. The ICJ famously endorsed the erga omnes concept in Barcelona Traction when it affirmed states' responsibility to refrain from "acts of aggression, and of genocide,” and to observe "the principles and rules concerning the basic rights of the human person, including protection from slavery and racial discrimination,” and characterized these norms as "obligations of a State to the international community as a whole.”[2] Although superficially appealing, the ICJ's attempt to frame peremptory norms as duties owed by states to the international community as a whole poses significant conceptual difficulties of its own: In what sense does the international community suffer an injury when a state subjects its own nationals to slavery or racial discrimination? It is unclear why the international community as a whole could claim a more particularized interest in intrastate human rights observance than either its constituent member-states or the people who reside within them.

Public order theory's best response to this dilemma has been to recast peremptory norms as principles integral to the normative objectives of international law and constitutive of the international community itself. Myers McDougal, Harold Lasswell, Michael Reisman, and others have argued persuasively that jus cogens norms such as the prohibitions against acts of aggression and racial discrimination reflect international law's transformation into a purposeful global community of conscience dedicated to promoting human rights and the peaceful coexistence of states.[3] As evidence of this normative agenda, public order theorists point to instruments such as the Charter of the United Nations, which defines the United Nations' objectives to include the promotion of "international peace and security,” "friendly relations among nations,” "human rights,” and "fundamental freedoms.”[4]

At the same time, public order's insight that peremptory norms shape and define international law's normative agenda does not, in and of itself, yield a promising positive or prescriptive theory of jus cogens. Public order theory does not illuminate the normative basis of peremptory norms, nor does it clarify which particular international norms should be deemed peremptory. When confronting these critical questions concerning the nature and content of peremptory norms, advocates of public order theory either retreat to circular reasoning about peremptory norms' indispensability to international society or recycle arguments from consent or natural law theory. Equally disconcerting, public order theory—like consent and natural law theory—does not address the enduring paradox at the core of human rights discourse: international law's seemingly contradictory commitments to state sovereignty and individual dignity. And as we shall see now, leading human rights theories fare no better.

  • [1] See, e.g., Bundesverfassungsgericht [BVerfGE] [Federal Constitutional Court] Apr. 7,1965 (F.R.G.) (characterizing peremptory norms as “legal rules . . . indispensable to the existence of the law of nations as an international legal order”) (quoted in Stefan A. Riesenfeld, JusDispositivum and Jus Cogens in International Law: In the Light of a Recent Decision of the GermanSupreme Constitutional Court, 60 Am. J. Int'l L. 511, 513 (1966)); Orakhelashvili, supra note45, at 46 (“The purpose of jus cogens is to safeguard the predominant and overriding interests andvalues of the international community as a whole . . . .”).
  • [2] Barcelona Traction, Light & Power Co. (Belg. v. Spain) 1970 ICJ Rep. 3, 33.
  • [3] Myres S. McDougal, Harold D. Lasswell & Lung-Chu Chen, Human Rightsand World Public Order: The Basic Policies of an International Law of HumanDignity 3-6 (1980); W. Michael Reisman, Siegfried Wiessner & Andrew R. Willard, The NewHaven School: A Brief Introduction, 32 Yale J. Int'l L. 575, 576 (2007).
  • [4] U.N. Charter art. 1, 1-3; soe also Hannikainen, supra note 16, at 5 (explaining that indiscerning jus cogens, "at present it can be said that the United Nations . . . acts on behalf of ‘theinternational community of States as a whole' ”).
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