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Relative Normativity in International Law
Ulrich Fastenrath1
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Introduction
In a well-known article published ten years ago,2 Prosper Weil spoke out against several developments in the theory and practice of international law which aim at a gradual differentiation of the normativity of international legal norms: (i) the emergence of soft law, culminating in a fierce debate on the legal effects of certain resolutions of the UN General Assembly;3 (ii) the distinction made by the ILC between international crimes and international delicts, based on the further distinction between obligations erga omnes and obligations which are owed only to individual States;4 as well as (iii) the recognition of ius cogens as confirmed in Articles 53 and 64 of both the 1969 and the 1986 Vienna Conventions on the Law of Treaties.5 Professor Weil regarded these developments as pathological; they are to cause concern to the lawyer in his role as a `system builder by vocation'. According to him, international law would no longer be capable of fulfilling its function - the ordering of international relations in a heterogeneous, pluralist world - were the existence of rights or obligations to be determined through the importation of material criteria into the law. That would be to give uncertain weight to such rights and obligations and to abandon a neutral evaluation to be effected through the application of formal legal criteria.6
Other observers,7 approaching these developments from different theoretical frameworks, did not understand the stir caused by Professor Weil's article. In their view, relative normativity in international law is unavoidable. It is a simple reflection of fact. In the following, I will demonstrate that the second view is correct, even from the standpoint of the type of positivism championed by Professor Weil, which, in reliance on the terminology of German methodological literature, I will call legal positivism (Gesetzespositivismus) (I). I will then demonstrate that relative normativity of international law appearing within this theory correlates with such relative normativity to be found on the basis of other theories of law (II). Finally, I will draw attention to the fact that the coexistence of different theories gives rise to a further relativization of the normativity of international legal norms (III).
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1 Professor of Law, University of Dresden.
2 P. Weil, `Towards Relative Normativity in International Law?', 77
AJIL (1983) 413 et seq. (enlarged English version of: `Vers une
normativité relative en droit international?', 86 RGDIP [1982] 5
et seq.).
3 The concept of `soft law', as employed in the following, denotes
instruments which do not belong to the formal sources of international law. On
the concept of soft law in general and on its various meanings: R.R. Baxter,
`International Law in "Her Infinite Variety"', 29 ICLQ (1980) 549 et
seq.; R. Ida, `Formation des normes internationales dans une monde en mutation:
Critique de la notion de soft law', in Le droit international au service de
la paix, de la justice et du développement, Mélanges Michel
Virally (1991) 333 et seq. With particular regard to resolutions of the UN
General Assembly, cf. B. Sloan, `General Assembly Resolutions Revisited, (Forty
Years After)', 58 BYIL (1987) 39 et seq.
4 Art. 19 of the ILC Draft on State Responsibility, YILC 1976/II/2,
at 95 et seq.
5 1155 UNTS 331, respectively 25 ILM (1986) 543.
6 See supra note 1, at 416, 418 et seq., 440.
7 E.g., R.A. Falk, `To What Extent are International Law and
International Lawyers Ideologically Neutral?', in A. Cassese, J.H.H. Weiler
(eds), Change and Stability in International Law-Making (1988)
137.
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