Jus cogens als Performativität des Nichts: Eine Kritik der Hierarchisierung im Völkerrecht

The idea of peremptory norms of general international law (jus cogens) goes to the heart of the international legal order. Hierarchically superior to other rules of international law, peremptory norms are viewed as reflecting and protecting fundamental values of the international community. Yet their scope and legal consequences remain unclear; various feminist interventions have also highlighted the exclusionary side of promoting some values at the expense of others. This article aims to go further and problematize not only exclusion, but also the dynamics surrounding inclusion in lists of peremptory norms. Drawing on Sara Ahmed's notion of nonperformativity, it argues that the primary function of jus cogens is to discursively constitute the international community as peaceful, civilized, and progressive - without, however, providing tools for the actual realization of its ostensible fundamental values. To the contrary, the positive self-image invoked by jus cogens can serve to obstruct meaningful change which would require engagement with the various forms of violence facilitated and legitimated by international law itself. Using the prohibition of racial discrimination as its primary example, this article thus points towards a radical critique of hierarchization in international law.