Characterising jus cogens in practice: sovereign immunities and the challenge to hierarchically supe

Peremptory norms of jus cogens are regarded as representing the core values of the international community. The consensus among states, backed by recent international judicial practice, has been to recognise certain fundamental principles of human rights law broadly construed, such as the prohibition against torture, as constituting norms to which no derogation can be permitted. However, despite international instruments and an extensive range of jurisprudence showing the overriding authority of jus cogens norms and their elevated position in the international hierarchy, the exact scope and influence of these peremptory prohibitions remains controversial and open-ended. As this article seeks to demonstrate, the ability of states to successfully rely on ordinary rules of customary law in order to escape liability in cases where they conflict with peremptory norms has only operated to dilute the symbolic impact of jus cogens in practice.

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