My concerns are compounded by Mary Ellen’s argument that the function of natural (nonconsensual, nonderogable) law is to limit the application of positive law. While this seems fine in certain relatively easy cases (no genocide, no torture), what happens when international tribunals start to define jus cogens norms that are more contested? For example, what happens when international courts begin to spell out a norm of what is or is not aggression (as a matter of jus cogens, not just treaty law) when there is disagreement among states as to whether and how such a term should be defined as a matter of law? (I believe this is a topic to which Mary Ellen will be turning in a later post.)
Despite the theory that jus cogens is some form of higher law, isn’t it in practice a set of rules for which there is a broad consensus and which, as a matter of political will, the majority of the states in the world have decided to enforce? Prior to such a consensus, acts which are now prohibited (possibly) by jus cogens (take the ban on torture) were once quite widespread. If jus cogensis, at its core a function of consensus and political will, then leaving the definition of jus cogens to courts would actually weaken it. And, if this description of jus cogens is correct then it is notactually natural law, in the classic sense, but a version of voluntarist law in which there is a consensus among the parties who accept the norm to also enforce the norm on members of the international community who do not consent to the norm.
While there is such broad consensus on a few topics (and thus jus cogens norms in those areas), international courts are not the best means by which to attempt to define or expand jus cogens as they are not good reflections of the political will of the international community. If they overstate what is jus cogens, they undercut the very concept. Natural law as jus cogens is cabined by political will.
Exactly so. When puzzling through international law as it needs to work within the international system, good analysis places a sharp limit on natural law sources for this very reason. The things we most want to prohibit (genocide, torture) are sufficiently legalized that one addition explanation is hardly needed (that is, law exists and is recognized as law in its harder forms, quite apart from any consideration of custom, just cogens, or amorphus 'general principles of international law'). At best, a natural law explanation for these things is redundant.
The underlying problem, as the passage above hints, is in first determining what is natural, and then defining and implementing the natural in such a way as to make it a valid legal category. If the point of the natural is that it is universal and able to be recognized by reason, well, people have put many things into that category which do not belong there. I know by reason (and by my Aristotle) that some men are made by nature to be slaves; what's more, I could (at one point) have gotten near-unanimous consent on that point.
Aha, but people can be wrong: reason can mislead, authorities can point us in the wrong direction. Then the salient feature of natural law is that it resists derogation, in which case, it's anti-democratic and its presence in international law only occurs when willed by those who are able. Will fuses with power, and as a cursory survey of history will show, the results, at best, are mixed.
(this is not to say: abolition of the slave trade, etc, where will and power do come together under an argument about what is natural and unnatural, just that one oughtn't assume this the likely outcome)
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