¹ Verdross published an article in 1937 introducing the option of a positive legal limitation on the freedom of contract which nation-states enjoy in making treaties, and could realize this concept further when he was elected a member of the International Law Commission in 1957. Alfred von Verdross, Forbidden Treaties in International Law, 31 Am. J. Int'l L. 4, 571–77 (1937). Once elected as Special Rapporteur in 1953, Lauterpacht submitted a draft provision suggesting that a treaty is void if its performance involves any violation of the overriding principles of international law, Special Rapporteur Hersch Latuerpacht, The Ordre Public International, Law of Treaties: Report by Special Rapporteur, 2 Yearbook of the International Law Commission, U.N. Doc. A/CN.4/63.Google Scholar

² See Vienna Convention on the Law of Treaties arts. 53, 64, and 66(a), May 23, 1969.Google Scholar

³ This is not to overlook the fragmented and polycentric nature of global governance, whereby a multiplicity of non-state actors also contribute to achieving collective goals. See, e.g., Rosenau, James, Change, Complexity and Governance in a Globalizing Space, in Debating Governance 172 (Jon Pierre ed., 2000) (on such a broad definition of global governance). Nevertheless, the engagement of nation-states clearly remains essential to achieving lasting solutions to many global problems. Moreover, one must take account of the continued semantic value of the nation-state as a subject in the modern international legal system.Google Scholar

⁴ As per Lord Hoffmann of the British Supreme Court, the “same approach cannot be adopted in international law, which is based upon the common consent of nations,” in Jones v. The United Kingdom of Saudi Arabia, House of Lords, [2006] UKHL 26, para. 63., but cf. Hersch Lauterpacht, International Law, Vol. 1, 69 (1970). Lauterpacht's ever relevant, but unrealized, hope for the role of general principles in the development of international law beyond pure consensualism towards the will of states.Google Scholar

⁵ This is most notably expressed in the International Court of Justice's recent case, Jurisdictional Immunities of the State (Ger. v. Italy, Greece intervening), I.C.J. Rep. 2012 (hereinafter Jurisdictional Immunities).Google Scholar

⁶ See Talmon, Stefan, Jus Cogens after Germany v. Italy: Substantive and procedural Rules Distinguished, 25 Leiden J. of Int'l L. 986 (2012).Google Scholar

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¹² See Report of the Study Group of the International Law Commission on the Fragmentation of International Law, U.N. Doc. A/CN.4/L.628, April 13, 2006. Nevertheless, the token mention there of “functional differentiation,” and the hasty conclusion there that fragmentation was business as usual for a discipline which had always dealt with the institutional and political diversity of international society suggested a limited engagement with the sociological theory which had generated the original insight. Id., paras. 7, 17.Google Scholar

¹³ See Nobles, Richard & Schiff, David, A Sociology of Jurisprudence 47 (2006).Google Scholar

¹⁴ This development and its problems were eloquently expressed by the president of the International Court of Justice in his declaration in the Nuclear Weapons Opinion. See Declaration of President Bedjaoui, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. Rep. 270–71.Google Scholar

¹⁵ See Oeter, Stefan, International Law and General Systems Theory, 44 German Yearbook Int'l L. 93 (2001).Google Scholar

¹⁶ See Fuller, Lon L., Positivism and Fidelity to Law—A Reply to Professor Hart, 71 Harv. L. Rev. 631 (1958) (borrowing Fuller's phrase).Google Scholar

¹⁷ See Habermas, Jürgen, Theorie der Gesellschaft oder Sozialtechnologie? Eine Auseinandersetzung mit Niklas Luhmann, in Theorie Der Gessellschaft Oder Sozialtechnologie 157 (Jürgen Habermas & Niklas Luhmann eds., 1975).Google Scholar

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¹⁹ See Luhmann, Niklas, Social Systems 9 (1995). And, in turn, the operational closure achieved through the recursive linking of system specific communications serves as the “condition of possibility for openness.” Id. at 447.Google Scholar

²⁰ On the role of this functional method which corresponds to systems theory, see id. at 53.Google Scholar

²¹ See, Durkheim, Emile, The Division of Labour in Society (1964); Shmuel Eisenstadt, Social Change, Differentiation and Evolution, 29 Am. Soc. Rev. (1964); Georg Simmel, The Sociology of Georg Simmel (Kurt Wolff ed., 1964); Max Weber, Economy and Society (1968).Google Scholar

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²³ See id. Luhmann also includes differentiation in terms of a center and a periphery which allows for asymmetric relations between different social spheres. This differentiation form is not immediately relevant to the present study, except to note that it allows for the transcendence of the principle of segmentation; see, e.g., Wallerstein, Immanuel, The Modern World-System I: Capitalist Agriculture and the Origins of the European World-Economy in the Sixteenth Century (1974). Drawing upon Foucault, Kjaer also adds another differentiation form, namely “territorial differentiation,” to imply a “construction of a limited and coherent geographical space which is clearly demarcated from other geographical spaces within the framework of the modern nation-states,” see Kjaer, Poul, Constitutionalism in the Global Realm: A Sociological Approach 21 (2014). While that may seem relevant to the present study, it only obfuscates matters unnecessarily. What is most relevant for present purposes is the sovereign equality of nation-states, and that is most adequately represented by the segmentary principle of differentiation.Google Scholar

²⁴ Id. at 13, 33.Google Scholar

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²⁹ This was somewhat neglected by Luhmann. As Munch points out, Luhmann “deals too little” with the complex integration of functional and segmentary differentiation in world society. See Munch, Richard, Functional, Segmentary and Stratificatory Differentiation of World Society, in Bringing Sociology to International Relations: World Politics as Differentiation Theory 76 (Albert et al. eds., 2013).Google Scholar

³⁰ See, e.g., Wengler, Wilhelm, Völkerrecht, Vol. 1, 107 (1964); Wolfgang Preiser, History of the Law of Nations: Ancient Times to 1648, in II Encyclopedia of Public International Law 722 (Rudolf Bernhardt ed., 1995).Google Scholar

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⁴¹ Luhmann's theory of the evolution of the modern state in this respect is complex and there is little space to explore it here. In short, Luhmann claimed that the development relied upon the evolution of the institutions of parliamentary democracy, not as the actualization of consensus, but rather upon the reflexive mechanisms which allowed the state to construct itself as a “formula of unity for the self-description of the political system,” and to construct its legitimacy as a “formula for contingency.” See Luhmann, Niklas, Die Politik Der Gesselschaft 125 (2000); Niklas Luhmann, State and Politics: Towards a Semantics of the Self-description of Political Systems, in Political Theory in the Welfare State 128 (1990).Google Scholar

⁴² For accounts of such segmentary differentiation, see, e.g., Luhmann, Niklas, Globalization or World Society?, 7 Int'l Rev. of Soc. 72 (1997); Kenneth Waltz, Theory of International Politics 95 (1979); Mathias Albert & Barry Buzan, Differentiation: A Sociological Approach to International Relations Theory, 16 Eur. J. Int'l Relations 318 (2010); Munch, supra note 29, at 71.Google Scholar

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⁴⁷ See Scott, James Brown, The Spanish Origin of International Law: Francisco de Vitoria and His Law of Nations (1934); Grewe, supra note 31, at 25; J.A. Fernández-Santamaria, The State, War and Peace: Spanish Political Thought in the Renaissance 1516–1559, 61 (1977).Google Scholar

⁴⁸ According to Parry's account of the Age of Reconnaissance, the two principle motives which impelled Europeans to venture overseas in the sixteenth century were “acquisitiveness and religious zeal.” See Parry, John, The Age of Reconnaissance: Discovery, Exploration and Settlement from 1450 to 1650, 19 (1963).Google Scholar

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⁶⁸ See Koskenniemi, Martti, From Apology to Utopia (1989) (the most well-known example).Google Scholar

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⁷² Id. Though such a claim to universal validity is always precocious, as it is always open to functional equivalence.Google Scholar

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⁷⁵ See R. v. Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No. 3) (1999) 2 All E.R. 97. It is often overlooked that the House of Lord's decision to deny the former head of state immunity ratione materiae was based not on a violation of jus cogens, but rather on the authority of the 1984 Torture Convention which was incorporated into English law by the Criminal Justice Act 1988; see id. at 114 (as per Lord Browne-Wilkinson, “the Torture Convention did provide what was missing.”); see also Shelton, Dinah, Normative Hierarchy in International Law, 100 Am. J. Int'l L. 316 (2006).Google Scholar

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⁷⁸ See Weatherall, Thomas, Jus Cogens and Sovereign Immunity: Reconciling Divergence in Contemporary Jurisprudence, 46 Geo. J. of Int'l L. 1175 (2015).Google Scholar

⁷⁹ See Fox, Hazel & Webb, Philippa, The Law of State Immunity 26 (2015).Google Scholar

⁸⁰ See Bouzari v. Islamic Republic of Iran, [2002] 124 ILR 427, aff'd, [2004] 243 DLR (4th) 406, para. 91 (Can. Ont. Sup. Ct.). Municipal courts have generally rejected civil claims for jus cogens violations on the basis that they come too close to “subjecting one state to the jurisdiction of another.” Nevertheless, under the normative rupture of globalized society, neither practice nor logic appear to support the distinction of criminal proceedings as relating only to prosecution of the individual and civil proceedings as encroaching upon the sovereign immunity of the state. Special Rapporteur Kolodkin, Roman A., Second Report on Immunity of State Officials from Foreign Criminal Jurisdiction, International Law Commission, ¶ 66 U.N. Doc. A/CN.4/631 (2010). Recently, a U.S. District Court denied the former Prime Minister of Somalia immunity in a civil suit for violations of jus cogens in Yousuf v. Samantar, 699 F.3d 763, 776 (4th Circ. 2012), ultimately leaving the law in this area in a “state of flux.” Jones and Others v. The United Kingdom, Eur. Ct. H.R., para. 213 (2014).Google Scholar

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⁸² See The reference to the World Court is commonly used with little reflection. It appears, though, that the practice is based on a predominant statist concept of world society at the time of the Court's foundation. For example, according to Rosenne, the moniker is warranted by the recognition of the Court as the principal judicial organ of the United Nations, the fact that all members of the United Nations are ipso facto parties to the Statute of the Court, and the fact that non-members states can also be parties before the Court. Shabatai Rosenne, The World Court and How It Works 23 (Terry Gill ed., 2003). Nevertheless, the label is used differently here to highlight that, despite the statist foundations of the term, the Court must, in the absence of alternative legal structures, strive at an operational level to be a principal institution for expectations not only of sovereign states, but of a much broader world society.Google Scholar

⁸³ See Al-Adsani v. United Kingdom, App. No. 35763/97, para. 61 (2002).Google Scholar

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⁹⁰ See Fox, Hazel, The Law of State Immunity 525 (2002).Google Scholar

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⁹⁶ Id. at para. 95.Google Scholar

⁹⁷ Id. at para. 96.Google Scholar

⁹⁸ “While jurisdictional immunity is procedural in nature, criminal responsibility is a question of substantive law. Jurisdictional immunity may well bar prosecution for a certain period or for certain offences; it cannot exonerate the person to whom it applies from all criminal responsibility.” See Arrest Warrant of April 11, 2000 (Dem. Rep. Congo v. Belgium), Judgment, I.C.J. Rep. para 60 2002.Google Scholar

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