All three problems assume that a territorial boundary separates foreigners from insiders. The article concludes that the notion of an international community must be unearthed before lawyers can be sure that there are binding standards and why they exist. Mandatory standards reinforce and protect the ethics of the international community. Therefore, all residents have a legal interest in ensuring compliance with the mandatory standard. And individuals and non-state actors become members as well as states today. The international community exists other than through the personal interest of common economic, military or political affairs.113 Hersch Lauterpacht missed this point.114 The question I ask is whether the international community is the product of territorially limited entities or is it an entity that has legitimacy independent of the will of states? If international law consists of a community defined by a territorial boundary, then it will also act by an arbitrary will towards social entities outside the territorial limits of the members of the state. How can human rights, which are supposed to be peremptory norms, be universally shared among the inhabitants of those States when the will of States prevails? The United States subsequently prohibited the execution of juvenile offenders. While not necessarily in response to the aforementioned non-binding report, the Supreme Court cited evolving international standards as one of the reasons for the ban (Roper v. Simmons). A peremptory norm (also jus cogens or ius cogens /ˌdʒʌs ˈkoʊdʒɛnz, ˌjʌs/;[ 1] Latin for “peremptory law”) is a fundamental principle of international law that is accepted by the international community as a norm from which no derogation can be made. It would certainly be difficult to describe the consent approach as “sociological” or empirical.
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. 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 of the international community as a whole.119 The international legal order exists independently: Whether a particular state accepts its mandatory standards.
The mere reliance on the source thesis depends on an international community that recognizes, protects and guides states with territorial boundaries. Without mandatory norms that protect a state-centred legal order, there would be another international legal order.100 The question of the existence of binding norms brings us back to the iterative events of the socio-cultural ethic of the international community. The content of mandatory standards is aligned with and protects these assumptions and social expectations. Assumptions and expectations embody the international community. However, the independent analysis of the content of sources and arguments for justification has forgotten the importance of the ethics of the international community. Peremptory norms are integral phenomenological conditions for the existence of the international legal order. See, for example, United States Diplomatic and Consular Staff in Tehran, 1979, ICJ Rep 7, p. 19 (Order of 15 Dec.) and [1980] ICJ Rep 3, paragraph 92, p.
43. The Court has always held that peremptory rules exist as an end in themselves because of their relationship with the international community. See also Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion [2004] ICJ Rep 136, paragraph 157, p. 199. See also, in particular, East Timor, loc. cit. note 30, pp. 102, 172, 213-216 (dissenting opinion of Committee member Weeramantry); Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, [1986] ICJ Recp 14, paragraph 190, p. 100; Furundzija (CA), op. cit.
Cit. Footnote 17, para. 151-157, paragraphs 260-262. Judge Weeramantry contains a long list of decisions of international tribunals adopting the principle of jus cogens: see East Timor (Portugal v. Australia) [1995] ICJ Rep 90, p. 214. The Furundzija judgment contains another list of international decisions in the Furundzija (CA) case, loc. cit. O. note 17, p. 58, paragraph 170. Three problems surround this first sense of the relationship between coercive norms and the international community.
First, is an international legal order of such a community possible if its norms are the totality of the will of the members of the community? These members have the legal authority to decide who their nationals or members are. Does an international community that submits to such freedom of its members demand the exclusion of individuals, groups or societies from the community? For example, is a person “lawfully in the territory of a State party” to the International Covenant on Civil and Political Rights if he or she is not legally recognized by any State in the aggregated international community? Does a person have a duty if state officials consider him or her an insurgent, an illegal combatant or a terrorist? Do mandatory standards leave some people unprotected? This article answers the question “Why is a mandatory standard binding on state and non-state actors?” My argument is this.
