| |
|
 |
|
 |
|
 |
|
 |
|
  |
|
 |
|
  |
|
 |
|
 |
|
 |
|
 |
|
 |
|
 |
|
 |
|
 |
Reflections on the Existence of a Hierarchy of Norms in International Law
12.
Be that as it may, in conclusion, I wish chiefly to stress that one can no longer defend an exclusively voluntarist conception of international law like the one expressed by the Permanent International Court of Justice in its 1927 ruling in the Lotus case,38 since the existence of norms of international jus cogens and of obligations erga omnes shows that it has to an extent been transcended.
The ban on torture, for instance, is binding not just on the states parties to the 1984 United Nations Convention against torture and other cruel, inhuman or degrading punishments or treatment, but also on the whole international community, since it is a binding norm of general international law. The regulation by convention banning torture is undoubtedly more specific, apart from the fact that it institutes a number of specific guarantee procedures. Accordingly, as the Human Rights Committee set up by the International Covenant on Civil and Political Rights noted in its General Observation number 24 of November 1994,39 the ban on torture is a general principle of contemporary international law, where it has the rank of jus cogens and consequently binds the whole of the international community, that is, all states whether or not they are parties to the 1984 UN Convention.
It thus seems undeniable that, despite the difficulties and ambiguity of the notions of jus cogens and of obligations erga omnes, they have considerably limited the relativism of classical international law and contributed to the progressive affirmation of a development of international law including binding rules from which states cannot exempt themselves as long as they claim to be members of the international community.
That is why I consider that the notion of rules of jus cogens has introduced a hierarchy into contemporary international law, despite its indubitably inter-state features. I am sorry that I am opening, despite the suggestion by Weiler and Paulus, `for the Nth time, the debates about, say, jus cogens, Obligations erga omnes, Crimes of States, Custom and Treaty, Norm and Consequence and the other staples of the hierarchy discourse'40; I am also sorry for having set the debate on the level of the hierarchy of norms, not the level of methods as Professor Martti Koskenniemi might perhaps have wished. Yet I believe that, faithful to the spirit that animated Wolfgang Friedmann, we must take into account the complexity of contemporary international society and the new developments in international law.
To be sure, its institutional dimension has not overshadowed the relational character of international law, which seems irreducible. As the late René-Jean Dupuy stressed,41 the forced coexistence of an integrated international society and one formed by the juxtaposition of state interests makes the task of organizing and unifying the international community, as it were, `captive' to that antinomy. Yet the evolution of the international community and its legal order, international law, has had the consequence of increasingly clearly bringing out the insufficiency of classical international law, which is fundamentally individualist, and the need for a common order adapted to the dimensions of the planet and charged with protecting the general interest, if not indeed guaranteeing the survival of humanity.
38
Supra note 7.
39
???????
40
Weiler and Paulus, Paper presented at the Symposium on `The Changing Structure
of International Law Revisited', 27-28 March 1997.
41
R.-J. Dupuy,
© 1990-2004 European Journal of International Law
All comments and suggestions should be sent to webmaster
This site is part
of the Academy of European Law online, a joint partnership of the Jean Monnet Center at NYU School of Law and the Academy of European
Law at the European University
Institute.
This file was last modified:
Monday, August 07, 2000 12:54PM