18 Pages Posted: 25 Apr 2017
Max Planck Institute for Comparative Public Law and International Law; Goethe University Frankfurt - Research Center SAFE; Goethe University Frankfurt - Cluster of Excellence Normative Orders; Goethe University Frankfurt
Date Written: March 08, 2017
Abstract
This paper critically reassesses the notion of relative normativity in international law and the related debate triggered by the emergence of ius cogens and international soft law. Contrary to standard positivist assumptions which treat relative normativity as a pathology, the paper argues that relative normativity has been a consistent feature of international law since its emergence in early modernity. Tracking this development, the paper shows that the rejection of relative normativity is due to the particular political constellation of the formative period of international law around the turn of the 19th to the 20th century with its focus on unfettered state sovereignty. The postwar era, and even more so the era of globalization, saw a relativization of state sovereignty that allowed the re-emergence of relative normativity. It has prompted a theoretical debate, in which attitudes towards relative normativity correlate with general attitudes about globalization and its impact on international law. The paper concludes by arguing that relative normativity is likely to survive even the recent transformations of global governance caused by the more authoritarian forms of government. Efforts to subject relative normativity to the principles of democracy, the rule of law, and human rights are therefore more necessary than ever.
GOLDMANN, Matthias. Relative Normativity. In: D'ASPREMONT, Jean; SINGH, Sahib (Eds.). Fundamental Concepts of International Law, 2017 Forthcoming. Disponível em: <https://ssrn.com/abstract=2957069>. Acesso em: 26 abr. 2017.
