imposed by international law upon a State is that—failing the existence of a permissive rule to the contrary—it may not exercise its power in any form in the territory of another State.” This state-centric model of international law arguably gives rise to a corresponding normative deference to a state’s own interpretation of its obligations under international law, or more specifically, its obligations to carry out the aspects of international law that it has expressly consented to (by treaty or otherwise). An interpretive pluralism—wholly at odds with the concept of jus cogens—then arises from the international community’s lack of a hegemonic sovereign to act as a “single source of normative validity.” International law, in other words, traditionally operates as the law of the contingent—contingent on state through practice, formalized agreement, and jurisprudential expression. International law’s authority derives from the very signs of its existence—in treaty, in state practice, in opinio juris. Even more problematically for jus cogens, this kind of law is constantly evolving, dependent on the complex motivations that drive states in their various roles: as legislators, interpreters, adjudicators and enforcers of international law. In that model, [E]very breach of a customary law contains the seed for a new legality. In one sense, the action is a breach because the state is judged as a subject of international law; in another sense, the action is a seed for a new law because the state acts as a legislator of international law. Jus cogens norms, on the other hand, seek to affect a shift in the standing international legal framework: to bind states because such norms are supposedly not contingent; they are theoretically accepted by the international community of states “as a whole” because their normative validity exists ex ante to formalization in treaties or the like. But this proposition is extremely difficult to reconcile with the current international order, where, even as some principles may attain primacy, they do not do so without referencing state consent. As Gordon A. Christenson has noted, “[w]hile some of these interests might become overriding community policies thought fundamental, they are still perceived as part of the basic legal order of the nation-state system.” There is an unavoidable tension between universalism and contingency, between language that binds all, and practice that
imposed by international law upon a State is that—failing the existence of a permissive rule to the contrary—it may not exercise its power in any form in the territory of another State.” This state-centric model of international law arguably gives rise to a corresponding normative deference to a state’s own interpretation of its obligations under international law, or more specifically, its obligations to carry out the aspects of international law that it has expressly consented to (by treaty or otherwise). An interpretive pluralism—wholly at odds with the concept of jus cogens—then arises from the international community’s lack of a hegemonic sovereign to act as a “single source of normative validity.” International law, in other words, traditionally operates as the law of the contingent—contingent on state through practice, formalized agreement, and jurisprudential expression. International law’s authority derives from the very signs of its existence—in treaty, in state practice, in opinio juris. Even more problematically for jus cogens, this kind of law is constantly evolving, dependent on the complex motivations that drive states in their various roles: as legislators, interpreters, adjudicators and enforcers of international law. In that model, [E]very breach of a customary law contains the seed for a new legality. In one sense, the action is a breach because the state is judged as a subject of international law; in another sense, the action is a seed for a new law because the state acts as a legislator of international law. Jus cogens norms, on the other hand, seek to affect a shift in the standing international legal framework: to bind states because such norms are supposedly not contingent; they are theoretically accepted by the international community of states “as a whole” because their normative validity exists ex ante to formalization in treaties or the like. But this proposition is extremely difficult to reconcile with the current international order, where, even as some principles may attain primacy, they do not do so without referencing state consent. As Gordon A. Christenson has noted, “[w]hile some of these interests might become overriding community policies thought fundamental, they are still perceived as part of the basic legal order of the nation-state system.” There is an unavoidable tension between universalism and contingency, between language that binds all, and practice that
4-Guan-Final-macro.docx