Order, Ethics and the Constitution of International Society: Rethinking the Concept of Jus Cogens

Abstract

This thesis develops a sociological approach to theorising the emergence and nature of international peremptory law. It argues that due to its focus on formalism and abstract notions of rights, traditional legal treatments have failed to acknowledge the socially constructed nature of higher order norms. To address this shortcoming, the thesis transfers the concept of jus cogens into the realm of International Relations. Drawing on insights from constructivism and English School theory, it situates law in the context of society and conceptualises jus cogens as a generic institutional form that demarcates the normative boundaries of international society. From here, it sketches out two modes for thinking about the construction and content of jus cogens. The first is a social-structural account, which focuses on the relationship between the global normative system and social order. It argues that the international society’s normative boundaries are shaped by, though not always necessarily in line with, the ranking of states as superior and inferior. The second is a normative approach devised to study the foundational normative determinants from which superior norms derive their special status. Proceeding from the assumption that the content and identity of jus cogens depends on the normative character of international society, the thesis then assesses two possible ‘normative logics’ through which the peremptory status of a norm may be generated. It rejects a solidarist logic, which sees universal norms as the manifestation of cosmopolitan ideas about inalienable rights. Instead, it argues for a pluralist approach to ethics and order that depicts jus cogens as key to the development of international society towards a social site marked by diversity and respect for difference.