Date of Award
Doctor of Philosophy (PhD)
Kurt Taylor Gaubatz
David R. Hager
A gap currently exists between the sources of international law in the canon of jus cogens or peremptory norms. This gap is observed in the comparison of the rhetoric perpetuated by the community of international lawyers and the actions of states. It is especially apparent in the two oldest tenets of jus cogens, the prohibitions against piracy and slavery. The disconnect between rhetoric and reality exposes the limitations and the political nature of international law.
The gap is demonstrated by using peremptory norms as a crucial case in the international legal system because of its perceived status as the strongest and most robust set of norms. However, as demonstrated by the prohibitions against piracy and slavery, they fail to meet expectations. To understand the rhetoric of jus cogens, an examination of international legal textbooks is conducted to provide a window into the world view of the community of international lawyers. The other side of the gap is established by both the action and inaction of states concerning these norms. Implications arising from this gap affect the moral basis, purpose, stability, and strength of the international legal system.
The disconnect between the sources of international law gives rise to significant issues in international relations theory. In particular, the epistemic community of international lawyers is seen to have a constructed world view that has power over agendas and policies. This is shown to be inaccurate based on the crucial case of the peremptory norms surrounding piracy and slavery. International law is considered to be the paragon of normative systems that significantly influence state behavior. However, this project has shown that the mere existence of strong norms within a particular epistemic community may not have extensive power to modify state behavior. Caution is called for when drawing the international legal system as an example of normative power in world politics.
Smith, Stephanie E..
"Piracy, Slavery, and the Limits of International Law: The Gap Between the Rhetoric and Reality of Jus Cogens"
(2013). Doctor of Philosophy (PhD), dissertation, International Studies, Old Dominion University, DOI: 10.25777/7560-b191