3.1 The Primacy of Norms in Case Conflict of Norms is in Place

In the most generic terms, legal pluralism would mean the existence of different legal systems that exist independently and cover the same states or territories. The rules of international law are not present as hierarchical order and the sources of the international law as stated under the Article 38 of the ICJ Statute as treaties, customs, and general principles of law. The fragmentation of the normative structure of international law is very apparent. There is nevertheless an existence of conflict between various rules that are posed in international law. The usual practice international law has always had the presence of some norms more important than others and therefore an inaction or violation of these norms are considered as an international wrong. In the Nuclear Weapons Advisory Opinion (International Court of Justice, 1996 pp. 257, para. 79), it is certain that there is presence of some inviolable principles of international customary law from which no transgression is permissible, and no objections could be raised.

3.1 The Primacy of Norms in Case Conflict of Norms is in Place

When there is conflict of norms in place, the question of what norm should be given importance and how their importance is determined are significant questions that are raised. In order to comprehend such questions, it is important to understand the informal practice of hierarchical position of certain norms namely the erga omnes obligation and the peremptory norms. Article 103 of the UN Charter reads that an obligation under any international agreement and its superiority would take place in case of a conflict. The text of Article 103 states that the all the obligation and commitments under the UN Charter will supersede all the other commitments. Many have argued that the obligations would also include the obligations that arise due to the customary international law. However, this view was omitted when the UN Charter was entered into. This would mean that the principle of superiority of UN Charter would only be in case of other treaties. The possibility of advancements in international law holds that it might be possible for Article 103 to extend to any

customary law and its conflict with the obligations under UN charter. However, in practice, the Security Council is consistent in that UNSC Resolutions can supersede the conflicting customary law. As the Security Council is conceived by the UN Charter, the overriding effect thereby can be concluded to apply to the charter as well. Thus Article 103 provides that the obligations under the charter will prevail over the customary law obligations of the state (International Law Commission, 2006). The ICJ in the discussion of the Genocide Convention (International Court of Justice, 1993 p. 440) discussed the relationship between Article 103 and the jus cogens norms which state that as jus cogens is a norm that is superior to even the UN Charter. The charter obligations and any other bodies that function due to the Charter cannot be in conflict with the Jus cogens norms. Historically, the jus cogens norms or as it was referred to as before by various lawyers of the eighteenth century who claimed that the existence of some norms from which no derogation is permitted. In effect, the consequence of these norms was dealt with by ICTY. These significant principles that condemn torture has attained the status of a peremptory norm or a norm that enjoys the highest hierarchical status above the conventional treaty law and ordinary principles of customary law. The inherent consequence of the existence of these rules is international treaties, states and domestic laws and even other general customary law must not derogate from these laws and the normative effect of these jus cogens are very high. In the Vienna Convention on the Law of Treaties2, the aforementioned rule was imposed in Article 53 and 64 of the final draft. Article 64 states that if any new peremptory norm in the character of general international law when emerges is in conflict with an existing treaty, the existing treaty would be abrogated. Similarly, Article 53 of VCLT provides that the consequence of a conflict within treaty law and jus cogens norms, in which the former will be rendered inapplicable and void.

2 Please refer to the Vienna Convention on the Law of Treaties, 1969; Articles 51 and 63.

{18}

In this way, the pluralistic framework of international law has emerged that has led to the fragmentation of various normative effects within the rules-based order. The complexity of the modern societies and their political systems can create many discrepancies in the field of international law and jus cogens norms will fundamentally prevail over other treaty obligations and conventions regardless of any controversy caused.