Jus Cogens as the ‘Highest Law’? Peremptory Norms and Legal Hierarchies

Netherlands Yearbook of International Law 46 (2015), 173–210

40 Pages Posted: 2 Mar 2017 Last revised: 3 Mar 2017

Date Written: September 9, 2016

Abstract

Peremptory norms are often regarded as the only true instances of hierarchy in international law. Many legal arguments derive particular consequences from the special status of jus cogens in the legal hierarchy. This prominence of the notion of hierarchy contrasts with conceptual uncertainties. For this reason, the present chapter sets out four different concepts of hierarchy — structural, substantial, logical and axiological hierarchies. In a second step, the aspects that account for the special status of jus cogens — invalidity as a consequence of a conflict, nonderogability and derogatory power, a qualified law-making procedure and recognition of moral paramountcy — are analysed within the framework of these four types of hierarchy. Referring also to further attributes defining the special status of jus cogens, this part explores whether the various attributes of jus cogens can be explained on the basis of a coherent and non-circular concept of hierarchy. The chapter concludes by reflecting on how to increase the effectiveness of morally paramount norms through jus cogens arguments and beyond. Ultimately, a more gentle approach that does not view jus cogens as a trump card will be not only conceptually more convincing but also make peremptory norms more effective.

Keywords: Hierarchy, Invalidity, Jus cogens, Moral paramountcy, Nonderogability, Norm conflict

JEL Classification: K33

Suggested Citation

Kleinlein, Thomas, Jus Cogens as the ‘Highest Law’? Peremptory Norms and Legal Hierarchies (September 9, 2016). Netherlands Yearbook of International Law 46 (2015), 173–210, Available at SSRN: https://ssrn.com/abstract=2923974

Thomas Kleinlein (Contact Author)

University of Kiel ( email )

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