Towards Relative Normativity in International Law?

Abstract

The fundamental instability of normative differentiation explains why the greatest uncertainty prevails when it comes to singling out the norms belonging to the elite in comparison with ordinary norms. The international normative system has traditionally been characterized by its unity: whatever their formal origins, whatever their object or importance, all norms are placed on the same plane, their interrelations ungoverned by any hierarchy, their breach giving rise to an international responsibility subject to one uniform regime. Accordingly, the potential negative consequences of the relativization of international normativity must at worst be regarded as secondary effects of changes that in themselves are beneficial. The shifting of the axis of international law away from states towards the international community would undoubtedly represent a decisive step forward if it corresponded to any real transformation in international relations. Like the jus cogens doctrine and the theory of international crimes, it is inspired by highly respectable ethical considerations.