TABLE OF CONTENT

INTRODUCTION.....................................................................................................................................4

EARLY WRITINGS ON SOURCES OF INTERNATIONAL LAW AND HIERARCHY..........................................5

JUS COGENS...........................................................................................................................................6

IN THEORY.........................................................................................................................................6

IN PRACTICE.......................................................................................................................................9

TOWARDS THE FUTURE.......................................................................................................................11

SOFT LAW............................................................................................................................................12

CONCLUSION.......................................................................................................................................13

BIBLIOGRAPHY.....................................................................................................................................14

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 INTRODUCTION
In the international legal system, the question of hierarchy of norms involves the fundamental
nature and structure of international law and the rules of recognition by which law is
distinguished from norms that are not legally binding. Scholars in recent years have debated
this issue more frequently than their predecessors did during the first decades of the twentieth
century, when participants in the international legal system, the matters of international
concern, and international institutions were far fewer in number. Alfred Verdross wrote of jus
cogens in 1937, but the notion of a more general "relative normativity" was first discussed
and vigorously criticized by Prosper Weil in a landmark article published in the American
Journal of International Law (AJIL) in 1983.1

This essay examines the extensive debate over hierarchy of norms and sources in
international law. It focuses on assertions about the upper and lower extremes of the claimed
hierarchical order: first, that there exist superior norms (jus cogens or peremptory norms),
overriding other norms and binding all states, including objecting states; 2 and, second, that
international law includes so-called soft law, that is, normative provisions contained in non-
binding texts. With respect to the first topic, the essay examines theoretical approaches to jus
cogens and shows that while the concept is widely supported in the literature, sometimes to
an abusive extent, state practice and judicial opinions have been slow to recognize or give
legal effect to assertions of such norms. At the same time, a perceptible trend toward
discovering peremptory norms has emerged in international and national tribunals, raising a
new set of problems about the consequences of such recognition.

Concerning the second topic, the essay recognizes that states and international institutions
increasingly adopt norms or statements of obligation, in non legally binding texts. 3
Conversely, they also adopt texts in legally binding form that contain vaguely worded
statements of states' commitment to act "progressively," "according to their capacities," or "to
the extent feasible." Commentators disagree on whether these "soft law" texts are law, quasi
law, or not law at all.'4 An examination of practice demonstrates that the mode of adoption
does matter and that states consciously choose the form of texts to distinguish those that are
legally binding from those that are not. Nonetheless, normative statements contained in
nonbinding texts can generate a political impact equal at times to that of legally binding
instruments and can give rise to customary international law through state practice.

A third, related issue, not examined in depth in this essay, pertains more to choice of law
between conflicting norms of equivalent status, although one obvious means of resolving a
conflict is to designate one norm or subject matter as hierarchically superior to others. 5 The
problem of conflict has grown with the "fragmentation of international law" 6 over time. As
international law has expanded into new subject areas over the past century, with a
1
Martti Koskenniemi, Hierarchy in International Law: A Sketch, 8 EUR. J. INT'L. 566 (1997).
2
LAURI HANNIKAINEN, PEREMPTORY NORMS (JUS COGENS) IN INTERNATIONAL LAW.
3
DOUGLAS M. JOHNSTON, CONSENT AND COMMITMENT IN THE WORLD COMMUNITY.
4
Samuel A. Bleicher, The Legal Significance of Recitation of General Assembly Resolution.
5
The primacy of the United Nations Charter is set forth in Article.
6
Michael J. Matheson, The Fifty-seventh Session of the International Law Commission, 100 AJIL 416.

3
corresponding proliferation of international treaties and institutions, conflicts have
increasingly arisen between substantive norms or procedures within a given subject area 7 or
across subject areas, necessitating means to reconcile or rank the competing rules. 8 States are
finding it appropriate to designate preferences between norms within treaties or between
different treaties, 9or to develop choice-of-law principles. Conceptual problems abound
because almost every purported principle of precedence (e.g., lex specialis derogat lex
generali) has exceptions and no rule establishes when to apply the principle and when to
apply the exception.

This essay is organized to look first at the literature on normative hierarchy, published in the
American Journal of international Law during its first century. It then proceeds to examine
the doctrine and growing jurisprudence on peremptory norms before issue of soft law. The
conclusion attempts to describe the present system and espouses the need for more rigorous
presentation of evidence about the claimed superiority or legal value of specific norms, an
essential task when the apparent goal is to impose such norms states.

EARLY WRITINGS ON SOURCES OF INTERNATIONAL LAW AND HIERARCHY

Articles published in the AJIL during the first decades of the twentieth century revealed
enthusiasm for the codification of international law as a means of bringing more detail and
certainty to obligations,10 and a consequent shift from custom to treaty as the primary
instrument of law creation. Yet, for all the emphasis on positive law, many authors revealed a
belief that such law derives from and is inferior to international morality or natural law
precepts.11The existence of a common reservoir of universal principles governing "civilized
nations" and on which the positive law is based seems to have been taken for granted.
The well-known Martens clause testifies to belief in common values. Agreement on an
international ordre public or set of fundamental principles can also be seen in the period
following World War I, when international lawyers considered the trial and punishment of
those who had committed war crimes or were deemed responsible for the war, including the
German emperor. A commission of the Peace Conference reported that the war carried on by
the Central Powers was conducted by "barbarous or illegitimate methods in violation of the
established laws and customs of war and the elementary laws of humanity." According to the
commission, "All persons belonging to enemy countries, however high their position may
have been, without distinction of rank, including Chiefs of States, who have been guilty of
offences against the laws and customs of war or the laws of humanity, are liable to criminal
prosecution."

7
See, in this issue, Michael J. Mathe- son, The Fifty-seventh Session of the International Law Commission, 100
AJIL 416.
8
Theodor Meron, On a Hierarchy of International Human Rights, 80 AJIL 1 (1986); Bernard H. Oxman,
Complementary Agreements and Compulsory Jurisdiction, 95 AJIL.
9
15 Article 103 of the North American Free Trade Agreement (NAFTA), Dec. 17,1992, Can.-Mex.-U.S., 107 Stat.
2066, 32 ILM 289, 605 (1993).
10
Ernest Nys, The Codification of International Law, 5 AJIL 871, 886 (1911).
11
John P. Humphrey, On the Foundations of International Law, 39 AJIL 231 (1945).

3
The pre-World War I belief in common values of civilized nations was challenged increasing
division of independent states into democratic, fascist, and communist regimes by the actions
of some of those regimes. In the aftermath of events and the cataclysm of World War II,
many saw an even need to articulate or reassert the fundamental higher norms of international
law, which been blatantly transgressed. Quincy Wright wrote that superior principles of
justice mined by the international community formed part of the Nuremberg judgement;
principles are a source of law.12
Apart from considering wartime atrocities, commentators pointed to the emergence states as
making the international community increasingly heterogeneous, necessitating consensus on
basic values. It was also an especially essential to coordinate competing ideologies in the new
nuclear era. In this context, the international legal order required boundary principles that
would limit state sovereignty. The fact of limits in law, a superstructure national public order,
a matter previously implicit among states with a common history tradition, needed to be
made explicit. This claim of superior norms that override treaty custom, or provide an excuse
to breach an obligation, 13continues to be discussed.

JUS COGENS

IN THEORY
The theory of jus cogens or peremptory norms posits the existence of rules of international
law that admit of no derogation and that can be amended only by a new general norm of
international law of the same value. It is a concept that lacks both an agreed content and
consensus in state practice. In most instances it is also an unnecessary concept because, as
discussed further below, the derogating act violates treaty or custom and thus contravenes
international law without the need to label the norm peremptory.

Development of jus cogens- The notion of jus cogens originated solely as a limitation on
international freedom of contract. It was discussed at length for the first time by Verdross in
1937. Even prior to this, however, Quincy Wright had noted the problem of "illegal" treaties,
based on a 1916 judgment14 of the Central American Court of Justice denying the capacity of
Nicaragua to conclude the 1914 Bryan-Chamorro Treaty with the United States. 15 The Court
held that Article 2 of the Treaty, which gave the United States a ninety- nine-year lease on a
naval station on Nicaraguan territory in the Gulf of Fonseca, could not be applied because it
derogated from the customary international law rights of Salvador and Honduras to
condominium in the gulf. The Court also agreed with Costa Rica that Article 1 of the Treaty
conflicted with an 1858 treaty between Costa Rica and Nicaragua that protected boundary
waters. The decision in favour of Costa Rica upheld the earlier treaty. In his commentary
Wright appears to agree with de Visscher that custom and treaties may create "objective"

12
Quincy Wright, Legal Positivism and the Nuremberg Judgment, 42 AJIL 405 (1948).
13
Helen Silving, In re Eichmann: A Dilemma of Law and Morality, 55 AJIL 307 (1961).
14
Costa Rica v. Nicaragua, 11 AIJL 181 (1917).
15
Quincy Wright, Conflicts Between International Law and Treaties, 11 AIJL 566 (1917).

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rules of international law that are of universal and permanent applicability, but he notes that
the treaty was affecting the rights of non signatories and finds this fact a proper ground for
the Court's decision. Judge Schucking's well-known dissent in the PCIJ's Chinn case, in
which he argued that the Court should refuse to enforce an agreement contrary to
international public policy, was also influential and specifically cited by Verdross.

Verdross's other category of jus cogens consisted of general principles of morality or public
policy "common to the juridical orders of all civilized states," a concept more in keeping with
later writings on the topic. He grounded recourse to these ethical standards in the reference to
general principles of law recognized by civilized nations in the Statute of the PCIJ. He
acknowledged the difficulty of finding common ethical rules among members of the
international community, but found an "unequivocal" common principle in the decisions of
national courts that everywhere regards treaties as invalid if they "restrict the liberty of one
contracting party in an excessive or unworthy manner or ... endanger its most important
rights." To which international treaties are immoral, Verdross sought to determine the moral
tasks must accomplish, to seek the ethical minimum. He listed maintenance of law and order
the state, defence against external attack, care for the bodily and spiritual welfare of citizen’s
home, and protection of citizens abroad. Any treaty that would prevent a state from one of
these essential tasks would be regarded as immoral. In the considerable literature that has
materialized since the appearance of Verdross's the concept of jus cogens has received
widespread support, without any agreement or about its source, content, or impact.

Sources of peremptory norms: Verdross viewed the source of peremptory norms as residing
general principles of law recognized by all legal systems. Others believe peremptory norms
from consent, natural law (jus necessarium pro omnium), international public order, or
constitutional principles. A strictly voluntarist view of international law rejects the notion
state may be bound by an international legal rule without its consent and thus does not
organize a collective interest that is capable of overriding the will of an individual member
society. States are deemed to construct the corpus of international law either through
agreements or through repeated practice out of a sense of legal obligation. Indeed,
international law has traditionally been defined as a system of equal and sovereign states
whose actions limited only by rules freely accepted as legally binding. The PCIJ, in one of its
early stated that "[t]he rules of law binding upon States . . . emanate from their own free
expressed in conventions or by usages generally accepted as expressing principles of law." 16
As recently as 1986, the ICJ reaffirmed this approach with respect to the acquisition of by
states. In the Nicaragua Judgment the Court stated: "[I]n international law there rules, other
than such rules as may be accepted by the State concerned, by treaty or whereby the level of
armaments of a sovereign State can be limited, and this principle for all States without
exception.

The only references to peremptory norms in international texts are found in the Vienna
conventions on the law of treaties and they can be read largely to support a voluntarist basis
cogens. An early rapporteur on the law of treaties of the International Law Commission posed
that the ILC draft convention on the law of treaties include a provision voiding contrary to
16
S.S. Lotus (Fr. v. Turk), 1927 PCIJ.

3
fundamental principles of international law. Various scholars have convincingly argued that
the language of VCLT Article 53 establishes a purely consensual regime for the creation of
peremptory norms and that as development in international law the provision binds only
states parties to the vention.64 Some authors have gone further to argue that as a result of the
progressive of the provision and its consensual formulation, neither non parties to the VCLT
nor are bound by peremptory norms to which they object,65 which seems incompatible
objective of creating norms from which no derogation is possible. What exists outside treaty
law is the international public order, consisting of principles and rules whose enforcement is
of such vital importance to the international community as a whole that any action, or any
agreement that contravenes such a principle, can have no legal force. Any breach of such a
public order norm would fall in the realm of state responsibility.

Many scholars have long objected that the source of international obligation cannot lie in
consent, but must be based on a prior, fundamental norm that imposes a duty to comply with
obligations freely accepted.67 Without a source of this norm outside consent, there is an
unavoidable circularity of reasoning.68 Some scholars object that positivism does not
adequately describe the reality of the current international order. According to Christian
Tomuschat, "The cohesive legal bonds tying States to one another have considerably
strengthened since the coming into force of the United Nations Charter. Today a community
model of inter- national society would seem to come closer to reality than at any time before
in history."69 The community consists of states that live within a legal framework of a few
basic rules that nonetheless allow them considerable freedom of action. Out of the
community come common values and fundamental principles that bind the entire society.

In sum, the source of peremptory norms has been variously attributed to state consent, natural
law, necessity, international public order, and the development of constitutional principles.
The different theories lead to considerably different content for jus cogens norms and con-
sequences for their breach.

The legal consequences of jus cogens.

According to VCLT Article 53, a peremptory norm operates to void any treaty entered into
contrary to the norm. Yet it is hard to accept the practical import of the VCLT: if one assumes
that two states enter into an agreement, for example to commit genocide, slave trading, or
aggression, Article 71 would dictate that the parties should then eliminate the consequences
of any illegal act performed in reliance on the treaty and bring their relations into conformity
with the peremptory norm. Since the treaties and acts mentioned would also be likely to
constitute breaches of UN Charter Article 103, it would seem unnecessary to resort to jus
cogens. Erika de Wet, using torture as an example and citing the Furundzija case, 17 posits
several other specific consequences for states breaching a peremptory norm: delegitimizing
any legislative, administrative, or judicial act authorizing the prohibited act; overriding
domestic amnesty; allowing victims to file in international tribunals to hold national measures
internationally unlawful; obtaining civil damages from courts in any jurisdiction; allowing
universal jurisdiction for criminal investigation, prosecution, and punishment; and excluding
17
Prosecutor v. Furundzija, No. IT-95-17/1-T10, 1998.

3
application of political offense exceptions or statutes of limitations. Yet most of these
consequences could seemingly result from the enforcement of treaty and customary norms
without the necessity of jus cogens designation. National laws and policies do not excuse the
breach of an international obligation and the procedures for enforcement may be developed
independently of a jus cogens designation.

According to those who find the source of jus cogens in state consent, the consequence
limited to the law of treaties, pursuant to the provisions of the VCLT. Those provisions states
from concluding valid treaties contrary to peremptory norms because such treaties be illegal
and void ab initio. There are no other consequences under the most stringent sensual
approach, although some writers admit that if treaties violating peremptory illegal, there may
then be consequences in the law of state responsibility.

Those who accept a less consensual source for peremptory norms, whether based law or
implicit acceptance of "necessary" legal rules, agree that the consequences broader. Jus cogen
in this perspective overrides contrary international and whether the state in question accepts
or dissents from the asserted.

IN PRACTICE
The concept of jus cogens has been invoked largely outside its original context in treaties and
with only limited impact. At the International Court of Justice, until the term appeared only in
separate or dissenting opinions or when the Court was sources. Previously, states rarely raised
the issue, and when they did the Court take pains to avoid any pronouncement on it. The 1986
Nicaragua decision, most often cited for the Court's recognition of jus not in fact approve
either the concept or the content of such norms. In the subsequent advisory opinion on
nuclear weapons, the ICJ utilized descriptive phrases that could refer to peremptory norms,
although the language is unclear. The Court international humanitarian law so fundamental to
respect for the human person and "elementary considerations of humanity" that "they
constitute intransgressible principles of international customary law." Whether
"intransgressible" means the rules are peremptory or was used simply to emphasize the
binding nature of the customary norms is uncertain, but the former reading may be more
plausible.

The first occasion on which the International Court gave support to the existence of jus
cogens was in the February 3, 2006, Judgment on Preliminary Objections in Armed Activities
on the Territory of the Congo. The Democratic Republic of the Congo (DRC or the Congo)
alleged violations of human rights and humanitarian law resulting from acts of armed
aggression committed by Rwanda in the DRC. Three bases of jurisdiction asserted by the
Congo involved claimed breaches of peremptory norms. First, the DRC alleged breaches of
the Genocide Convention and contended that Rwanda's reservation withholding jurisdiction
from the ICJ was invalid because it sought to prevent the Court from safeguarding the
peremptory norms manifest in the Convention. Second, the DRC accused Rwanda of filing an
invalid reservation to the Racial Discrimination Convention, which according to the DRC
also contains peremptory norms. Third, the DRC invoked Article 66 of the Vienna

3
Convention on the Law of Treaties, to assert that the Court has jurisdiction to settle all
disputes arising from the violation of peremptory norms.

The Court for the first time explicitly and overwhelmingly recognized the existence of jus
cogens in its analysis of the validity of Rwanda's reservations to the Genocide and Racial
Discrimination Conventions. With respect to the Genocide Convention, the Court reaffirmed
that the rights and obligations contained therein are rights and obligations erga omnes, 18 then
pronounced the prohibition of genocide to be "assuredly" a peremptory norm of general inter-
national law. In making this straightforward statement, the Court did not offer any reference,
evidence, or analysis that might help to establish criteria for identifying other peremptory
norms or the consequences of such a characterization.

The concept of jus cogens norms has been pressed most strongly in the domestic courts
United States, initially in an effort to avoid U.S. constitutional doctrine that considers and
custom equivalent to other federal law, allowing the president and Congress to enact law
inconsistent with international law. Jus cogens obligations were asserted first in an enforce
the 1986 ICJ Judgment against the United States in the Nicaragua case.' 19 Argued that the
constitutional precedents do not apply to norms of jus cogens, which higher status that binds
even the president and Congress. The Court accepted the theory but held that compliance
with a decision of the ICJ is not a jus cogens requirement.

The recently completed ILC articles on state responsibility and accompanying commentary
take the position that peremptory norms exist, urging that the concept has been recognized
international practice and in the jurisprudence of international and national courts and 163
The commentary notes that the issue of hierarchy of norms has been much debated, but finds
support for jus cogens in the notion of erga omnes obligations and the inclusion concept of
peremptory norms in the Vienna Convention on the Law of Treaties. The articles propose a
hierarchy of the consequences of various breaches of international Article 41 sets forth the
particular consequences said to result from the commission of breach of a peremptory norm.
The text imposes positive and negative obligations states. With respect to the first, "what is
called for in the face of serious breaches is a coordinated effort by all States to counteract the
effects of these breaches." The commentary concedes that the proposal "may reflect the
progressive development of international an effort to strengthen existing mechanisms of
cooperation.' The core requirement, abstain from recognizing consequences of the illegal acts,
finds more support in state with precedents including rejection of the unilateral declaration of
independence by the annexation of Kuwait by Iraq, and the South African presence in
Namibia.' Article 41 of the articles on state responsibility, however, extends the duty to
combat condone illegal acts beyond the requirements of the UN Charter.

18
Congo v. Rwandao, Preliminary Objections, 1996 ICJ REP. 595.
19
Comm. of U.S. Citizens Living in Nicar. v. Reagan, 859 F.2d 929, 940 (D.C. Cir. 1988).

3
 TOWARDS THE FUTURE
The concerns raised by most proponents of jus cogens are serious and the rationale emerges
from the literature is one of necessity: the international community cannot a consensual
regime to address many modern international problems. Jus cogens are needed because the
modern interdependence of states demands an international ordre public containing rules that
require strict compliance. The ILC commentary to the articles on state responsibility favours
this position, asserting that peremptory rules exist to "prohibit what has to be seen as
intolerable because of the threat it presents to the survival of States and their and the most
basic human values."20 The suggested urgent need to act fundamentally challenges the
consensual framework of the international system by seeking to impose states obligations that
the "international community" deems fundamental. State has yet to catch up fully with this
plea of necessity.

Like obligations erga omnes, international crimes are so designated because the prohibited
acts are deemed of such importance to the international community that individual criminal
responsibility should result from their commission. Unlike obligations erga omnes, however,
international criminal norms can pose problems of relative normativity. It has been clear since
the Nuremberg trials that conforming to or carrying out domestic law is no excuse for breach
of international criminal law; it would seem plausible as well, if unlikely to arise in practice,
that a defence based on carrying out international legal obligations, such as those contained in
a bilateral treaty, would fail if those obligations contradict the requirements of criminal law.'
In this respect, norms of criminal law would be given supremacy over other international law
in practice. Other aspects of the interrelationship of these categories of norms and the sources
that create them should be noted. First, neither the designation of international crimes nor that
of obligations erga omnes involves a purported new source of law; crimes are created and
defined through the conclusion of treaties and obligations erga omnes by treaty and
customary inter-national law. Both, however, may emerge from a global recognition of
fundamental moral or ethical values. Second, it appears logical that all international crimes
are obligations erga omnes because the international community as a whole identifies and
may prosecute and punish the commission of such crimes. The reverse, however, is not the
case. Not all obligations erga omnes have been designated as international crimes. Racial
discrimination, for example, is cited as an obligation erga omnes but is not included among
international crimes.

Among those acts designated as international crimes, there appears to be no hierarchy. ICTY
declared in the Tadic judgment that "there is in law no distinction between the seriousness of
a crime against humanity and that of a war crime.

SOFT LAW
States inside and outside international organizations now often place normative statements
and agreements in no legally binding or political instruments such as declarations,
resolutions, and programs of action. Nonbinding commitments may be entered into precisely

20
State Responsibility Articles; supra note 103, at 283, Art. 40 Commentary, para. 3.

3
to reflect the will of the international community to resolve a pressing global problem over
the objections of the one or few states causing the problem, while avoiding the doctrinal
barrier of their lack of consent to be bound by the norm. The increasing use of nonbinding
normative instruments in several fields of international law is evident. There is no accepted
definition of "soft law," but it usually refers to any inter-national instrument other than a
treaty that contains principles, norms, standards, or other statements of expected behaviour.
The term "soft law" is also sometimes employed to refer to the weak, vague, or poorly drafted
content of a binding instrument;21 it was this type of norm that Prosper Weil had in mind in
his article on relative normativity.22

Some scholars have distinguished hard law and soft law by stating that breach of law gives
rise to legal consequences, while breach of a political norm gives rise to political
consequences. Such a distinction is not always easy to make. Testing normativity based on
consequences can be confusing since breaches of law may give rise to consequences that may
be politically motivated. A government that recalls its ambassador can either be expressing
political disapproval of another state's policy on an issue, or be penalizing noncompliance
with a legal norm. Terminating foreign assistance may also be characterized either way. Even
binding UN Security Council resolutions based on a threat to the peace do not necessarily
depend upon a violation of international law.

With respect to "relative normativity," scholars debate whether binding instruments and
nonbinding ones are strictly alternative or whether they form two ends of a continuum from
legal obligation to complete freedom of action, making some such instruments more binding
than others. If and how the term "soft law" should be used depends in large part on whether
one adopts the binary or continuum view of international law. To many, the line between law
and not-law may appear blurred. Treaty mechanisms are including more "soft" obligations,
such as undertakings to strive to cooperate. Nonbinding instruments, in turn, are
incorporating supervisory mechanisms traditionally found in hard-law texts. Both types of
instrument may prescribe compliance procedures that range from soft to hard.
Nonbinding norms have complex and potentially large impact on the development of inter-
national law. Customary law, for example, one of the two main sources of international legal
obligation, requires compliance (state practice) not only as a result of the obligation, but as a
constitutive, essential part of the process by which the law is formed. In recent years, non
binding instruments have sometimes provided the necessary statement of legal obligation
(opinio juris) to evidence the emergent custom and have assisted in establishing the content
of the norm. The process of drafting and voting for nonbinding normative instruments may
also be considered a form of state practice.
From the perspective of state practice, resolutions, codes of conduct, conference declarations,
and similar instruments are apparently not viewed as law, soft or hard, albeit they may be
related to or lead to law in one manner or another. States and other actors generally draft and
agree to legally nonbinding instruments advertently, knowingly. They make a conscious
decision to have a text that is legally binding or not. Although a vast amount of resolutions

21
International Covenant on Economic, Social and Cultural Rights, Dec. 16, 1966, 993 UNTS Article 2(1).
22
9 Weil, supra note 2, at 414.

3
and other nonbinding includes normative declarations, so-called soft law is not law or a
formal source of instruments may express trends or a stage in the formulation of treaty or
custom, not come with a sliding scale of bindingness, nor does desired law become law by
stating desirability, even repeatedly.
Nonbinding instruments also act interstitially to complete or supplement binding Sometimes
this progression is foreseen in the agreement itself; for example, Convention on Migratory
Species of Wild Animals,23 the Antarctic Treaty'24 agreements of the International Atomic
Energy Agency on non proliferation of nuclear weapons. Another group of nonbinding
instruments was adopted by states parties with authoritatively interpreting the obligations
contained in treaty provisions. Examples the Inter-American and Universal Declarations of
Human Rights, as they relate to the charters of the Organization of American States and the
United Nations, and the more recent on Fundamental Principles and Rights at Work.' 25 One
could add the general of various human rights treaty bodies, albeit the interpretation is
accomplished independent treaty body conferred by that authority and not by the states
parties directly.
The considerable recourse to and compliance with nonbinding norms may represent a
maturing of the international system. The ongoing relationships between states and other
actors, deepening and changing with globalization, create a climate that may diminish the felt
need to include all expectations between states in formal legal instruments. Nonbinding
norms and informal social norms can be effective and offer a flexible and efficient way to
order responses to common problems. They are not law and they do not need to be in order to
influence conduct in the desired manner.

CONCLUSION
The growing complexity of the international legal system is reflected in the increasing variety
of forms of commitment adopted to regulate state behaviour in regard to an ever-growing
number of transnational problems. The various international actors create and implement a
range of international commitments, some of which are in legal form, some of which are
claimed have supremacy over other norms, and some of which are contained in nonbinding
instruments.
In practice, conflicts between norms and their interpretation are probably present, largely
decentralized international legal system where each state is entitled equally to interpret for
itself the scope of its obligations and the implementation require. The interpretations or
determinations of applicable rules may make all international law somewhat relative, in the
absence of institutions to render authoritative interpretations binding on all states.
There are also dangers of relative normativity alluded to by Professor Weil hazards that have
surfaced since that time. Many authors and litigators have inflationary tendency: non law
becomes soft law; soft law becomes hard customary and treaty norms become jus cogens. It
is even possible, according nonbinding instruments, such as General Assembly resolutions,
23
Convention on the Conservation of Migratory Species of Wild Animals, June 23, 1989, 19 ILM 15 (1980).
24
Antarctic Treaty, Dec. 1, 1959, 12 UST 794, 402 UNTS 71.
25
188 ILO, Declaration on Fundamental Principles and Rights at work (June 1998).

3
can identify norms of jus cogens. Resolutions of international organizations are treated in a
depending more on their content than on their form and process of adoption. At the other end
of the spectrum, the notion of jus cogens has been invoked to such a point in litigation in the
United States that it risks devaluing "ordinary" customary international Notably, in some
pleadings in Alien Tort Claims cases defendants and even the government asserted that a
claim could not lie under the law of nations unless it was considered jus cogens. Fortunately,
this misconstruction of the term "law of nations" was not the United States Supreme Court in
Sosa v. Alvarez.26
The extent to which the system has moved, and may still move, toward the imposition global
public policy on non consenting states remains highly debated, but the need for on states'
freedom of action seems to be increasingly recognized. International and doctrine now often
refer to the "common interest of humanity"27 concern of mankind" to identify broad concerns
that could form part of international policy. References are also more frequently made to "the
international community" or authority of collective action.28 In addition, multilateral
agreements increasingly provisions that affect non party states, either by providing incentives
to adhere to or by allowing parties to take coercive measures that in practice require
conforming of states that do not adhere to the treaty. The UN Charter itself contains a list of
principles29 and in Article 2(6) asserts that these may be imposed on non parties if to ensure
international peace and security. Perhaps the most significant positive aspect trend toward
normative hierarchy is its reaffirmation of the link between law and which law is one means
to achieve the fundamental values of an international society. It remains to be determined,
however, who will identify the fundamental values and what by process.

BIBLIOGRAPHY
 Gurdip Singh, International law, ( 3rd Edn., Eastern Book Company, 2015)

 Malcom N. Shaw, International law, ( 6th Edn., Cambridge University Press, 2008)

 Dinah Shelton, Normative Hierarchy in International Law, The American Journal of

International Law, Vol. 100, No. 2 (Apr., 2006), pp. 291-323.

26
Sosa v. Alvarez Machain, 542 U.S.
27
LOS Convention, supra note 16, Art. 137 (2).
28
VCLT, supra note 4, Art. 53; LOS Convention, supra note 16, Arts. 136-37.
29
UN Charter Art. 2.