Norm conflicts and hierarchy in international law

This chapter examines the notion of a hierarchical international legal order whereby (certain) human rights norms are elevated to a hierarchically superior level. Although international law has developed as a horizontal system of norms, the notion of hierarchically superior norms is not new. The idea is most prominently reflected in the concept of jus cogens, which may be described as a substantive hierarchy in international law. Since most of the generally-accepted jus cogens norms are of a human a rights nature, a strong argument can be made that at least certain human rights could be put at the top of the pyramid of international legal norms. The chapter, however, shows that it is questionable whether the jus cogens-based substantive norm hierarchy is more than theoretical. Because of the rather narrow interpretation of the scope of jus cogens norms in judicial practice, narrow conflicts with norms of this character are very unlikely to emerge in practice. The chapter further questions whether the concept of hierarchy in international law should be associated exclusively with jus cogens. Other possible instances of hierarchy include obligations erga omnes and article 103 of the un charter.