Hierarchy of Norms
“Law” is made up of a set of rules of unequal weight. The force of law of these rules follows the principle that a hierarchy of norms exists. Therefore, in applying a law, one must make sure that a given rule does not contradict a principle of law that is superior to it.
The hierarchy of norms in each country depends on the legal authority of the body that adopted the norm. The types of law and their hierarchy vary depending on the legal system. There are at least two families of law: civil law (of Continental influence) and common law. Those systems that refer to Islamic law usually mention the Koran in their constitutions. Such reference to Islamic law translates into the acts and texts that set out the content and analysis of the various rules that apply to individuals. Thus, it is difficult to try to establish a general hierarchy. For instance, in the United States, in written law, statutes are higher than regulations, and federal laws are above State laws. In France, ordinances are superior to laws and decrees. But there are other kinds of norms, increasing the complexity of the comparison. Furthermore, in countries whose judicial system is based on the common law, such as the United States, judicial precedents ( stare decisis ) also carry significant weight. In the United Kingdom, the fountainhead of common law jurisprudence, much of the legal system is based on court rulings and case law.
One possible generalization, at least in the domestic legislation of civil and common law States, is that a country’s constitution has a higher authority than any other law. However, this is not true of all judicial systems. For instance, some systems do not separate religion and the State, and religious law has a privileged position in the hierarchy of laws. In Islamic law, the Koran is the highest authority.
Most legal systems admit that international law prevails over domestic law because governments commit to ensuring that their domestic laws are in conformity with conventions they ratify (which often means they must adapt their national legislation). The key, when faced with implementing or conforming oneself to specific legislation, is to make sure that the law in question is not in contradiction with one that has more authority—that it does not infringe on the exercise of a right or freedom protected by a principle that is superior in the hierarchy of laws.
As an example, the legal sources in decreasing hierarchical order are:
- international treaties and conventions
- the constitution
- federal law
Several interpretations of the doctrine of international law are possible. One of these posits that there is no hierarchy of norms at an international level because States are the sole source of international law. In other words, since all norms of international law supposedly represent the “general will” of States, they are of equal standing. This argument fails to recognize several contradictions:
- International society includes a variety of non-state actors who contribute to and participate in the development of international rights and obligations. The term soft law is often used to refer to norms derived from rules, resolutions, decisions, and so on, adopted by intergovernmental organizations (on behalf of Member States, but without the direct input of many States of the world, or at least without their formal commitment in the form of a signature or of legally binding obligations). Customary rules are also created by state practices.
- International law recognizes a set of rules of law whose authority is so strong that it can be imposed on all States. These are often defined as jus cogens , or peremptory norms of general international law. All States are under obligation to respect these rules, no matter what the conditions are in a country, and whether or not they have signed any international conventions.
- Furthermore, all States that have adhered to the UN Charter accept that their obligations under the UN Charter prevail over those under any other international agreement (Art. 103 of UN Charter). This means that agreements between States or between State and non-state actors may not contradict either the spirit or letter of the UN Charter. ▸ Fundamental guarantees ▸ International law
The Different Norms and Their Hierarchy
International legal norms take different forms, and they may be written or not. They include, in decreasing order of authoritativeness:
- jus cogens , or peremptory norms of general international law;
- the UN Charter;
- international conventions and customary international law;
- Security Council resolutions adopted under Chapter VII of the UN Charter;
- international contracts or operational mandates of international forces or institutions; and
- soft law and other resolutions, declarations, and decisions of international organizations.
In practice, international law is a set of rules that links certain States and not others, and it is applied irregularly. The growth and diversity of international texts force lawmakers to seek ways to reconcile norms that may be contradictory.
The International Court of Justice (ICJ) has defined its own hierarchy of norms to be applied when ruling on a dispute. That hierarchy is as follows:
- international conventions;
- international custom, as evidence of a general practice accepted as law;
- general principles of law derived from legal systems of the world; and
- judicial decisions and teachings, as subsidiary means for the determination of the rules of law (Art. 38.1 of ICJ Statute).
The International Criminal Court first applies its own Statute and then “the established principles of the international law of armed conflict . . . and principles and rules of law as interpreted in its previous decisions” (Art. 21 of ICC Statute).
It is important to know how to interpret the value and meaning of rules of law. The provisions of later treaties prevail over earlier ones on the same subject (unless otherwise specified), and more specific provisions prevail over vague or more general rules (Art. 30 of the Vienna Convention on the Law of Treaties). For rules on interpretation, see ▸ International law ▸ International conventions ▸ International Court of Justice
Monitoring the Implementation of the Hierarchy of Norms
In practice, the existing mechanisms to facilitate the reconciliation of contradictory norms, monitor the respect for their hierarchy, or ensure their compliance with superior norms are insufficient.
Some States have an institution that examines the constitutionality of their laws and any international conventions they intend to ratify. In principle, this ensures that no law is adopted that is in contradiction with the country’s constitution. Also, it is often the legislative body of a State that ratifies international conventions signed by the executive branch, which is meant to ensure that the government does not enter into international commitments that are incompatible with its domestic laws.
The only other way that the implementation of the hierarchy of norms can be monitored is directly through court rulings. However, in some legal systems, this application and control of norms takes place only in the context of a specific controversy, and in many jurisdictions such rulings only apply to the case in question.
The absence of a fully efficient global judicial system limits the possibilities of regulating compliance with the hierarchy of norms.
If States or intergovernmental organizations have doubts concerning the conformity of a law with international standards or the proper hierarchy to be followed, they can refer questions of legal interpretation to the ICJ. The ICJ can only issue advisory opinions on these questions (as is the case for most judicial organs of the UN), and States must voluntarily submit such questions to it.
Within the framework of the UN, various committees were created to monitor the implementation of international conventions relating to human rights. They carry out periodic examinations of national laws and make sure that the national legislation has incorporated the provisions of the relevant international convention. Individuals do have some recourse before such non-judicial bodies.
Certain regional judicial organs, on the other hand, have the authority to judge whether a domestic law is in compliance with international law. The European and Inter-American courts of human rights, for instance, can issue binding decisions on such matters. However, recourse to such bodies is often limited to the parties directly involved in the specific case, and there are many restrictions in submitting a case to such a body.
Actors in the humanitarian field must make sure that the decisions taken by States and international organizations do not contradict the principles and obligations of international humanitarian law.
NGOs must make it their responsibility to ensure that these humanitarian laws and principles are mentioned and respected within the context of every relief operation or operational agreement and prevail over national legislation with less legal authority.
▸ Customary international law ▸ European Court of Human Rights ▸ Individual Recourse ▸ Inter-American Court and Commission of Human Rights ▸ International conventions ▸ International Court of Justice ▸ International Criminal Court ▸ International law ▸ Natural law ▸ Soft law
For Additional Information: Hannikainen, L. Peremptory Norms ( Jus Cogens*) in International Law.* Jyväskylä: Finnish Lawyers’ Publishing Company, 1988.
Shelton, Dinah. “International Law and ‘Relative Normativity.’” In International Law , edited by Malcolm D. Evans, 145–72. Oxford: Oxford University Press, 2003.