Political Constructivism and Reasoning About Peremptory Norms of International Law

All currently accepted peremptory norms of general international law represent principles that are of fundamental importance to the international community. Courts and tribunals often refer to an international legal norm’s fundamental importance to the international community when identifying it as a norm that gives rise to peremptory legal consequences. This Article explores the potential of social contract theory and of political constructivism more generally as an approach to understanding what it means to say that a legal norm, particularly a human rights norm, is of fundamental importance to the international community. Taking John Rawls’s The Law of Peoples as a starting point for this line of inquiry, the article investigates whether social contract methods can shed light on those fundamental principles and policies that enjoy special protection through peremptory legal consequences in international law