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Abstract

This chapter 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 chapter argues that relative normativity has been a consistent feature of international law since its emergence in early modernity. Tracking this development, the chapter shows that the rejection of relative normativity is due to the particular political constellation of the formative period of international law around the end of the nineteenth century and the beginning of the twentieth, 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 reemergence of relative normativity. This has prompted a theoretical debate in which attitudes towards relative normativity correlate with general attitudes about globalization and its impact on international law. The chapter 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.