Article 103 of the Charter of the United Nations

(31) Hierarchical relations between norms of international law. The main sources of

international law (treaties, custom, general principles of law as laid out in Article 38 of

the Statute of the International Court of Justice) are not in a hierarchical relationship

inter se. 23 Drawing analogies from the hierarchical nature of domestic legal system is not

generally appropriate owing to the differences between the two systems. Nevertheless,

some rules of international law are more important than other rules and for this reason

enjoy a superior position or special status in the international legal system. This is

sometimes expressed by the designation of some norms as “fundamental” or as

expressive of “elementary considerations of humanity” 24 or “intransgressible principles

of international law”. 25 What effect such designations may have is usually determined by

the relevant context or instrument in which that designation appears.

(32) Recognized hierarchical relations by the substance of the rules: Jus cogens. A

rule of international law may be superior to other rules on account of the importance of

its content as well as the universal acceptance of its superiority. This is the case of

peremptory norms of international law (jus cogens, Article 53 VCLT), that is, norms

“accepted and recognized by the international community of States as a whole from

which no derogation is permitted”. 26

23 In addition, Article 38 (d) mentions “judicial decisions and the teachings of the most highly

qualified publicists of the various nations, as subsidiary means for the determination of rules of

law”.

24 Corfu Channel case (United Kingdom v. Albania) I.C.J. Reports 1949, p. 22.

25 Legality of the Threat or Use of Nuclear Weapons case, Advisory Opinion,

I.C.J. Reports 1996, para. 79.

26 Article 53 VCLT: A treaty is void if, at the time of its conclusion, it conflicts with a

peremptory norm of general international law. For the purposes of the present Convention, a

peremptory norm of general international law is a norm accepted and recognized by the

international community of States as a whole as a norm from which no derogation is permitted

and which can be modified only by a subsequent norm of general international law having the

same character.

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(33) The content of jus cogens. The most frequently cited examples of jus cogens

norms are the prohibition of aggression, slavery and the slave trade, genocide, racial

discrimination apartheid and torture, as well as basic rules of international humanitarian

law applicable in armed conflict, and the right to self-determination. 27 Also other rules

may have a jus cogens character inasmuch as they are accepted and recognized by the

international community of States as a whole as norms from which no derogation is

permitted.

(34) Recognized hierarchical relations by virtue of a treaty provision: Article 103

of the Charter of the United Nations. A rule of international law may also be superior

to other rules by virtue of a treaty provision. This is the case of Article 103 of the

United Nations Charter by virtue of which “In the event of a conflict between the

obligations of the Members of the United Nations under the … Charter and their

obligations under any other international agreement, their obligations under the …

Charter shall prevail.”

(35) The scope of Article 103 of the Charter. The scope of Article 103 extends not

only to the Articles of the Charter but also to binding decisions made by United Nations

organs such as the Security Council. 28 Given the character of some Charter provisions,

the constitutional character of the Charter and the established practice of States and

United Nations organs, Charter obligations may also prevail over inconsistent customary

international law.

27 Official Records of the General Assembly, Fifty-sixth Session, Supplement 10 (A/56/10),

commentary to article 40 of the draft articles on State Responsibility, paras. (4)-(6). See also

commentary to article 26, para. (5). See also Case concerning armed activities on the territory

of the Congo (Democratic Republic of the Congo/Rwanda) I.C.J. Reports 2006, para. 64.

28 Questions of Interpretation and Application of the 1971 Montreal Convention arising from

the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United States of America)

(Provisional Measures) I.C.J. Reports 1998, para. 42 and Case concerning Questions of

Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident

at Lockerbie (Libyan Arab Jamahiriya v. the United Kingdom) (Provisional Measures)

I.C.J. Reports 1992, paras. 39-40.

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(36) The status of the United Nations Charter. It is also recognized that the

United Nations Charter itself enjoys special character owing to the fundamental

nature of some of its norms, particularly its principles and purposes and its universal

acceptance. 29

(37) Rules specifying obligations owed to the international community as a whole:

Obligations erga omnes. Some obligations enjoy a special status owing to the universal

scope of their applicability. This is the case of obligations erga omnes, that is obligations

of a State towards the international community as a whole. These rules concern all

States and all States can be held to have a legal interest in the protection of the rights

involved. 30 Every State may invoke the responsibility of the State violating such

obligations. 31

(38) The relationship between jus cogens norms and obligations erga omnes. It is

recognized that while all obligations established by jus cogens norms, as referred to in

conclusion (33) above, also have the character of erga omnes obligations, the reverse is

29 See Article 2 (6) of the Charter of the United Nations.

30 In the words of the International Court of Justice: “… an essential distinction should be

drawn between the obligations of a State towards the international community as a whole, and

those arising vis-a-vis another State in the field of diplomatic protection. By their very nature,

the former are the concern of all States. In view of the importance of the rights involved, all

States can be held to have a legal interest in their protection; they are obligations erga omnes.

Case concerning the Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain)

(Second Phase) I.C.J. Reports 1970, p. 3 at p. 32, para. 33. Or, in accordance with the definition,

by the Instutut de droit international, an obligation erga omnes is “[a]n obligation under general

international law that a State owes in any given case to the international community, in view of

its common values and its concern for compliance, so that a breach of that obligation enables all

States to take action”. Institut de droit international, “Obligations and Rights Erga Omnes in

International Law”, Krakow Session, Annuaire de l’Institut de droit international (2005),

article 1.

31 Official Records of the General Assembly, Fifty-sixth Session, Supplement 10 (A/56/10),

Draft Articles on State Responsibility, Article 48 (1) (b).

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not necessarily true. 32 Not all erga omnes obligations are established by peremptory

norms of general international law. This is the case, for example, of certain obligations

under “the principles and rules concerning the basic rights of the human person”, 33 as

well as of some obligations relating to the global commons. 34

(39) Different approaches to the concept of obligations erga omnes. The concept of

erga omnes obligations has also been used to refer to treaty obligations that a State owes

to all other States parties (obligations erga omnes partes) 35 or to non-party States as third

32 According to the International Court of Justice “Such obligations derive, for example, in

contemporary international law, from the outlawing of acts of aggression, and of genocide, as

also from the principles and rules concerning the basic rights of the human person, including

protection from slavery and racial discrimination. Some of the corresponding rights of

protection have entered into the body of general international law … others are conferred by

international instruments of a universal or quasi-universal character.” Case concerning the

Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain) (Second Phase)

I.C.J. Reports 1970, p. 3 at p. 32, para. 34. See also Case concerning East Timor (Portugal v.

Australia) I.C.J. Reports 1995, p. 90 at p. 102, para. 29. See also Legal Consequences of

the Construction of a Wall in the Occupied Palestinian Territory. Advisory Opinion,

I.C.J. Reports 2004, paras 155 and 159 (including as erga omnes obligations “certain …

obligations under international humanitarian law” as well as the right of self-determination).

For the prohibition of torture as an erga omnes obligation, see Prosecuto v. Anto Furundzija,

Judgment of 10 December 1998, Case No. IT-95-17/1, Trial Chamber II, ILR, vol. 121 (2002),

p. 260, para. 151 and for genocide, see Case concerning application of the Convention on the

Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia),

Preliminary Objections, Judgment, I.C.J. Reports 1996, p. 595 at para. 31, and Case concerning

armed activities on the territory of the Congo (Democratic Republic of the Congo/Rwanda)

I.C.J. Reports 2006, at para. 64.

33 Barcelona Traction case, ibid. This would include common article 1 of the Geneva

Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in

the Field, the Geneva Convention for the Amelioration of the Condition of the Wounded, Sick

and Shipwrecked Members of Armed Forces at Sea; the Geneva Convention relative to the

Treatment of Prisoners of War, and the Geneva Convention relative to the Protection of Civilian

Persons in Time of War, all of 12 August 1949.

34 The obligations are illustrated by article 1 of the Treaty on Principles Governing the Activities

of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial

Bodies, United Nations, Treaty Series, vol. 610, p. 205 and article 136 of the United Nations

Convention on the Law of the Sea, United Nations, Treaty Series, vol. 1834, p. 396.

35 Institut de droit international, “Obligations Erga Omnes in International Law”, Krakow

Session, Annuaire de l’Institut de droit international (2005), article 1 (b).

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party beneficiaries. In addition, issues of territorial status have frequently been addressed

in erga omnes terms, referring to their opposability to all States. 36 Thus, boundary and

territorial treaties have been stated to “represent[] a legal reality which necessarily

impinges upon third States, because they have effect erga omnes ”. 37

(40) The relationship between jus cogens and the obligations under the United Nations

Charter. The United Nations Charter has been universally accepted by States and thus a

conflict between jus cogens norms and Charter obligations is difficult to contemplate. In

any case, according to Article 24 (2) of the Charter, the Security Council shall act in

accordance with the Purposes and Principles of the United Nations which include norms

that have been subsequently treated as jus cogens.

(41) The operation and effect of jus cogens norms and Article 103 of the Charter:

(a) A rule conflicting with a norm of jus cogens becomes thereby ipso facto

void;

(b) A rule conflicting with Article 103 of the United Nations Charter

becomes inapplicable as a result of such conflict and to the extent of such conflict.

36 “In my view, when a title to an area of maritime jurisdiction exists - be it to a continental

shelf or (arguendo) to a fishery zone - it exists erga omnes, i.e. is opposable to all States under

international law”, Separate Opinion of Judge Oda, Case concerning maritime delimitation in the

area between Greenland and Jan Mayen (Denmark v. Norway) Judgment, I.C.J. Reports 1993,

p. 38 at p. 100, para. 40. See likewise, Separate Opinion by Judge De Castro, in Legal

Consequences for States of the Continued Presence of South Africa in Namibia

(South-West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion,

I.C.J. Reports 1971, p. 16 at p. 165: “… a legal status - like the iura in re with which it is

sometimes confused - is effective inter omnes and erga omnes ”. See also Dissenting Opinion

by Judge Skubiszewski, in Case concerning East Timor (Portugal v. Australia)

I.C.J. Reports 1995, p. 90 at p. 248, paras. 78-79.

37 Government of the State of Eritrea v. the Government of the Republic of Yemen (Phase one:

Territorial sovereignty and scope of the dispute), Arbitration Tribunal, 9 October 1998,

ILR, vol. 114 (1999), p. 1 at p. 48, para. 153.

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(42) Hierarchy and the principle of harmonization. Conflicts between rules of

international law should be resolved in accordance with the principle of harmonization,

as laid out in conclusion (4) above. In the case of conflict between one of the

hierarchically superior norms referred to in this section and another norm of international

law, the latter should, to the extent possible, be interpreted in a manner consistent with

the former. In case this is not possible, the superior norm will prevail.

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