Resolving Normative Conflicts Between Bilateral Investment Treaties and Peremptory Norms of General International Law: A Jus Cogens Displacement Framework

Abstract

The proliferation of bilateral investment treaties (BITs) has generated persistent normative conflicts with peremptory norms of general international law (jus cogens), creating adjudicatory uncertainty in investor-state dispute settlement (ISDS) proceedings. This article examines the doctrinal and procedural mechanisms through which international arbitral tribunals may resolve such conflicts, with particular reference to ICSID jurisprudence from 2015 to 2024. Drawing on a systematic analysis of 47 arbitral awards and annulment decisions, the study constructs a hierarchical displacement framework that prioritizes jus cogens obligations without categorically voiding BIT protections. The findings indicate that a proportionality-calibrated interpretive methodology, grounded in Article 53 of the Vienna Convention on the Law of Treaties, can reconcile investment protection standards with erga omnes obligations, offering procedurally sound guidance for treaty negotiators, arbitrators, and state parties.