Erica Duffy, Working Group 2, Subgroup 1

There is a hierarchy in international law: jus cogens norms always prevail over other norms of
international law

While there exists no formal hierarchy1 of sources in international law, it has been well-established
by the international community that those instruments which are of a peremptory normative character
can make void the rest. However, given the consent-based nature of the international legal order2, can
these rules really create a normative hierarchy, and if so, is it true that they will always prevail over
other norms of international law?
In order to properly answer this question, we must first establish what jus cogens norms are. As
outlined in the Vienna Convention on the law of treaties,3 they are principles of international law,
recognised by the international community from which no derogation is permitted. There is no
authoritative or quantifiable list4 defining which peremptory norms actually exist on the grounds that
their content is scheduled to be determined through State practice5. As a result, there are various
examples of case law from which we can derive what the international community considers at this
point in time to be norms which are peremptory in character. Examples which have been established
as such by the ICJ include Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion)6,
which states that there exists a corpus of humanitarian law, reflecting the most universally recognised
principles which are considered to be jus cogens norms. In the Nicaragua case, the court both
recognised the jus cogens theory as an accepted doctrine of international law, relying specifically on
the prohibition of the use of force in its argument.7 Is is in cases such as these where the substantive
content of peremptory norms can be found.
To understand whether or not jus cogens norms create a hierarchy within the normative legal
order, they must be analysed comparatively with other sources of international law. As was outlined

1
R Wolfram, ‘Sources of International Law’ (Max Planck Encyclopaedia of International Law, May 2011) <
http://opil.ouplaw.com.proxy-ub.rug.nl/view/10.1093/law:epil/9780199231690/law-9780199231690-
e1471?rskey=gE5QwN&result=1&prd=EPIL> accessed 16 April 2016.
2
Owed to the fact that States in themselves are sovereign, they cannot be bound by a rule to which they have
not subscribed.
3
Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27 January 1980)
1155 UNTS 331 (VCLT) art 53.
4
It is noteworthy to mention that the International Law Commission decided against including examples of
peremptory norms in the Vienna Convention on the Law of Treaties in order to firstly, avoid the
misunderstanding as to the position of those norms not included in that list, and secondly so as not to end up
spending time studying matters which fell outside the scope of the article. See ‘Yearbook of the International
Law Commission’ (1966) II A/CN.4/247 par 50.
5
ibid.
6
Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) ICJ Rep 1996.
7
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America)
(Merits) ICJ Rep 1986.
in the Vienna Convention on the law of treaties,8 a treaty becomes void where it conflicts with a
peremptory norm. This clearly indicates the preeminence of jus cogens rules, as was confirmed in the
case of Aloeboetoe et al. v Suriname9 where the Inter-American Court of Human Rights disregards
the need to investigate whether or not the agreement at hand was a treaty, on the grounds that if it
were, it would be void due to its conflict with the peremptory norm prohibiting slavery.
With regard to customary law, we can confirm the hierarchal status of jus cogens rules through
simple deduction of logic, as was done by Robert Kolb in his book on the subject10, which reads:
A customary rule can uphold itself only if it continues to be supported by practice
and legal opinion. But if that practice and opinion now go in another and
incompatible direction, then the previous norm is totally or partially modified. In
such a situation, no room for true conflict exists.
What he is essentially saying is that customary law and peremptory norms are each established
through practice and legal opinion, so where there is an emergence of a peremptory norm, it cannot
conflict with existing customary law or it would not have emerged in the first place.
Lastly, when comparing jus cogens norms to general principles of law, one point to note is that
they are both derived from the natural law theory, as opposed to the positivist theory as the other two
sources. The distinction which proves that peremptory norms rank higher than general principles in
the normative hierarchy is not only their ethical nature, but the fact that those principles which do not
qualify as peremptory, be they structural or otherwise inherent to the international legal system, are
rather ‘foundational’ norms as opposed to ‘higher’ norms.11
While it is clear from the aforementioned comparative analysis to the other sources of
international law that jus cogens rules create a hierarchy distinguishing themselves from all other
norms, the question of whether or not they always prevail remains contested.12 Peremptory norms are
by nature substantive law rules, and as has been outlined, prevail in that category of international law.
However, there is evidence of circumstances when it comes to rules of a procedural nature, where jus
cogens norms’ superiority is reduced. Notably in the Al-Adsani v UK case,13 where the court, citing
the International Law Commission, found that in certain cases the argument of sovereign immunity
superseded the plea of a violation of a peremptory norm.
To conclude, as has been demonstrated, there exists a hierarchy of norms in international law;
jus cogens norms emerge in terms of substantive law, overruling any potential conflicting instruments

8
VCLT.
9
Aloeboetoe et al. v Suriname (1993) IACHR Series C No 11 par 57.
10
R Kolb, Peremptory International Law - Jus Cogens: A General Inventory (Bloomsburg Publishing 2015).
11
M E O’Connell, Jus Cogens: International Law’s Higher Ethical Norms (2011) NDLSP 11-19 p 84.
12
P Weil, Towards Relative Hierarchy in International Law? (1983) 77 AJIL 413 and P Zenovic, Human
Rights Enforcement via Peremptory Norms - a Challenge to State Sovereignty (2012) 6 RGSL 54.
13
Al-Adsani v UK App no 35763/97 (ECHR, 21 November 2001).
within the international legal order. However, given that there are cases of procedural rules which
can quash their enforcement, it cannot be said that they always prevail over other norms of
international law.

Bibliography
Primary Sources
Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27 January
1980) 1155 UNTS 331 (VCLT)

Al-Adsani v UK App no 35763/97 (ECHR, 21 November 2001)

Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) ICJ Rep 1996

Aloeboetoe et al. v Suriname (1993) IACHR Series C No 11

Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America)
(Merits) ICJ Rep 1986

Secondary Sources

‘Yearbook of the International Law Commission’ (1966) II A/CN.4/247

Kolb R, Peremptory International Law - Jus Cogens: A General Inventory (Bloomsburg Publishing 2015)

O’Connell M E, Jus Cogens: International Law’s Higher Ethical Norms (2011) NDLSP 11-19 p 84.

Weil P, Towards Relative Hierarchy in International Law? (1983) 77 AJIL 413

Zenovic P, Human Rights Enforcement via Peremptory Norms - a Challenge to State Sovereignty (2012) 6
RGSL 54

Wolfram R, ‘Sources of International Law’ (Max Planck Encyclopaedia of International Law, May 2011) <
http://opil.ouplaw.com.proxy-ub.rug.nl/view/10.1093/law:epil/9780199231690/law-9780199231690-
e1471?rskey=gE5QwN&result=1&prd=EPIL>