Treaties, Peremptory Norms and International Courts: Is the Hierarchy Theory Treading Water?

AuthorMadeleine Lusted
PositionLLB (University of Bristol) '20
Pages209-218
2020 LSE LAW REVIEW
209
Treaties, Peremptory Norms and International Courts: Is
the Hierarchy Theory Treading Water?
Madeleine Lusted*
INTRODUCTION
In its recent report, the ILC addressed two main outstanding issues relating
to jus cogens norms: the existence of regional jus cogens and the possibility of an
illustrative list.
1
The report concludes with draft conclusion 24, which proposes a
non-exhaustive list of the “most widely recognised”
2
peremptory norms, such as
the prohibition of genocide and aggressive use of force. Peremptory norms are
no doubt a “positive part of international law,”
3
yet are still conceptualised by
some as “a dramatic (or threatening) magic.”
4
The ILC’s report is perhaps an
attempt to concretise jus cogens as, in Kolb’s words, an “operational concept of
law”, rather than a mere extension of natural law theory or lofty ideals. This post
offers the thesis that, whilst such a mission is admirable, the operation of
peremptory norms as envisaged by the ‘hierarchy theory’
5
remains impeded by
the dominance of treaties as a source of international law. Furthermore, this seems
unlikely to change in the immediate future because treaties are a primary vehicle
for the enforcement of state sovereignty, which remains paramount in an
international legal sphere dominated by positivist notions of state consent. The
* LLB (University of Bristol) ‘20. This piece was origina lly published on the LSE Law
Review Blog at: https://blog.lselawreview.com/2020/02/treaties-norms-international-
courts-hierarchy-theory-treading-water/>.
1
ILC, ‘Fourth report on peremptory norms of general international law (jus cogens)’ 71st
session (9 April - 7 June; 8 July - 9 August 2019) UN Doc A/CN.4/727.
2
ibid 63.
3
Robert Kolb, Peremptory International Law: Jus Cogens, A General Invento ry (Hart Publishing
2015) 128.
4
ibid.
5
Lee M Caplan, ‘State Immunity, Human Rights, and Jus Cogens: A Critique of the
Normative Hierarchy Theory’ (2003) vol. 97, no. 4 AJIL 741.

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