In defence of relative normativity: communitarian values and the Nicaragua case

This article investigates, and attempts a preliminary adjudication of, the conflict between two conceptions of customary international law and the rival conceptions of international society they presuppose. The first conception of custom is of a positivistic variety and draws on a statist conception of international society. The other manifests a natural law orientation and finds its rationale in a communitarian account of that society. The first pair of conceptions will be examined in the version powerfully elaborated by the French international lawyer Prosper Weil. The second pair will be considered as it is exemplified by, and reconstructed from, the World Court's 1986 judgment in the merits phase of Military and Paramilitary Activities in and against Nicaragua. The overall purpose of this article is to sketch a dialectical route by means of which the second set of conceptions of international custom and society may be shown to be superior to the first set, and to do so by appealing solely to considerations whose relevance and force is conceded by one of the most influential and articulate proponents of the combined positivist/statist paradigm.