Published online by Cambridge University Press: 28 June 2013
This article gives an overview of two competing paradigms in the practice of judicial organs for the resolution of norm conflicts, namely the paradigm of a human rights based hierarchy versus the paradigm of systemic integration or conflict avoidance. Judicial practice indicates that norm conflicts typically manifest themselves between human rights obligations on the one hand and other categories of international obligations on the other. Do judicial organs resolve such norm conflicts in a manner that favours human rights obligations? If so, this would support the view in the literature that the international legal order is increasingly operating within a paradigm of hierarchy, with human rights at its apex. The article addresses this question based on the results of a study conducted by 10 authors who have analysed the practice of domestic, regional, supranational and international courts in dealing with norm conflicts between human rights, on the one hand and the other sub-regimes of public international law mentioned above, on the other (de Wet and Vidmar 2011). The article argues that judicial practice reveals no clear or consistent patterns of a human rights based hierarchy in international law can currently be induced from the manner in which courts resolve norm conflicts in international law. Instead, courts avoid resolving norm conflicts within a paradigm of hierarchy and instead remain within a paradigm of systemic integration that is aimed at maximizing the accommodation of competing sub-regimes of public international law.
1 See Kelsen, H, General Theory of Law and State (Russell and Russell, New York, 1961) 115, arguing that national law is not a system of ‘coordinated norms’, operating side by side on the same level, ‘but a hierarchy of different level of norms’.Google Scholar
3 Kelsen (n 1) 115.
5 It is arguable that the International Court of Justice (ICJ) is the central court which enforces applicable legal norms internationally, as its scope is not limited to a particular international legal sub-regime. However, the jurisdiction of this court to settle international disputes is severely hampered by the fact that it depends on state consent and that only states can be parties to contentious proceedings.
6 See Jenks, W, ‘Conflict of Law-Making Treaties’ (1953) 30 British Yearbook of International Law 401.Google Scholar
7 For a discussion see, inter alia, Milanovic, M, ‘A Norm Conflict Perspective on the Relationship between International Humanitarian Law and Human Rights Law’ (2010) 14 Journal of Conflict and Security Law 459; Milanovic, M, ‘Norm Conflict in International Law: Whither Human Rights?’ (2009) 20 Duke Journal of International and Comparative Law 69, 71–2; Vranes, E, ‘The Definition of “Norm Conflict” in International Law and Legal Theory’ (2006) 17 European Journal of International Law 395; Pauwelyn, J, Conflict of Norms in Public International Law (Cambridge University Press, Cambridge, 2003) 176.
8 Milanovic, M, ‘Norm Conflicts, International Humanitarian Law, and Human Rights’ in Ben-Naftali, O (ed), International Humanitarian Law and International Human Rights Law (Oxford University Press, Oxford, 2011) 102. Using the term ‘apparent conflict’ as synonym for ‘broad conflict’ can, however, be confusing. It could create the impression that a broad norm conflict does not qualify as a conflict at all. This would not be a correct assumption, as the limitation of the scope of certain rights or obligations under the circumstances is in fact the result of and resolution to a norm conflict.Google Scholar
11 See further below (nn 23–25).
12 See further below (nn 37–39).
14 See below (nn 54–56).
15 Under the lex specialis principle the more specific legal regulation prevails over the general one. In international law the doctrine may be applied, inter alia, with regard to the relationship between treaty law and customary international law, whereas the ‘more specific’ treaty obligation prevails over a ‘more general’ customary obligation. Some authors see this as a tool of resolution of norm conflicts, where a treaty obligation conflicts with a customary obligation. See Orakhelashvili, A, ‘Recent Practice on the Principles of Treaty Interpretation’ in Orakhelashvili, A and Williams, S, 40 Years of the Vienna Convention on the Law of Treaties (BIICL, London, 2010) 143–4.Google Scholar
16 ICJ Statute, art 38(1)(d).
17 See E de Wet and J Vidmar, ‘Introduction’ in De Wet and Vidmar (n 9) 4. See also Nollkaemper, A, ‘The Role of Domestic Courts in the Case Law of the International Court of Justice’ (2006) 5 Chinese Journal of International Law 304, giving the example of the ICJ which has ‘referred to domestic judgments as State practice in determining customary law on immunities in the Arrest Warrant case’. See also Roberts, A, ‘Comparative International Law? The Role of National Courts in Creating and Enforcing International Law’ (2011) 60 International and Comparative Law Quarterly 57 ff.
18 De Wet and Vidmar (n 9) 5.
19 Ibid 5–6.
20 Ibid 6.
21 See A Tzanakopoulos, ‘Human Rights and United Nations Security Council Measures’ in De Wet and Vidmar (n 9) 51–2.
22 See Chinkin, C, ‘Jus Cogens, Article 103 of the UN Charter and Other Hierarchical Techniques of Conflict Solution’ (2006) 27 Finnish Yearbook of International Law 63.Google Scholar
23 For references to the concept of ‘fundamental norms’ see, e.g., Tavernier, P, ‘L’identification des règles fondamentales, un problème résolu?’ in Tomuschat, C and Thouvenin, JM (eds), The Fundamental Rules of the International Legal Order: Jus Cogens and Obligations Erga Omnes (Martinus Nijhoff, Leiden, 2006) 2–5. See also Kadelbach, S, ‘Jus Cogens, Obligations Erga Omnes and Other Rules: The Identification of Fundamental Norms’ in Tomuschat, C and Thouvenin, JM (eds), The Fundamental Rules of the International Legal Order: Jus Cogens and Obligations Erga Omnes (Martinus Nijhoff, Leiden, 2006) 21–6. For an overview of the peremptory norms, see Byers, M, ‘Conceptualising the Relationship between Jus Cogens and Erga Omnes Rules’ (1997) 66 Nordic Journal of International Law 213–19.
24 The Vienna Convention on the Law of Treaties (1969) art 53.
25 International Law Commission, Report of the Study Group on Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law, A/CN.4/L.682, 13 April 2006 [Fragmentation Report] para 224.
26 Armed Activities in the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v Rwanda) (Jurisdiction and Admissibility)  ICJ Rep 6 at 32; Lord Hutton and Lord Millet in R v Bow Street Metropolitan Stipendiary Magistrate ex parte Pinochet Ugarte (No 3)  1 AC 147 1999 All ER 97 (House of Lords); Public prosecutor’s office v Scilingo Manzorro, Final appeal judgment, No 16/2005 (Spanish High Court); ILDC 136 (ES 2005), Michael Dominques (United States), Case 12.285, Inter-Am. C.H.R Report No 62/02, OEA/Ser.L/V/II.117 doc 1 rev.1 (2003) para 49.
27 For a list of the most commonly accepted norms of jus cogens, see the Commentary to art 40 paras 4 and 5: Articles on Responsibility of States for Internationally Wrongful Acts, with commentaries, Yearbook of the International Law Commission (2001) (‘the ILC Articles on State Responsibility, with Commentaries), vol II, pt II. These include prohibition of aggression, slavery and slave trade, genocide, racial discrimination and apartheid, torture, basic rules of international humanitarian law applicable in armed conflict and the right to self-determination.
28 See (n 21) 51–2.
29 S Karamanian, ‘The Human Rights Dimension of Investment Law’ in De Wet and Vidmar, (n 9) 269.
30 Ferrini v Germany, No 5044/04, 87 (2004) Rivista di diritto internazionale 539, ILDC 19 (IT 2004), 128 ILR 659 (11 March 2004); Criminal Proceedings against Milde, No 1072/09, 92 (2009) Rivista di diritto internazionale 618, ILDC 1224 (IT 2009). The Italian decisions also find resonance in the dissent of Al-Adsani v United Kingdom, App No 35763/97, ECtHR, 21 November 2001, para 55, Joint Dissenting Opinion of Judges Rozakis and Caflisch, Joined by Judges Wildhaber, Costa, Cabral Barreto and Vajic, para 3. See also R Pavoni, ‘Human Rights and the Immunities of Foreign States and International Organizations’ in De Wet and Vidmar, (n 9) 87 ff.
31 Lozano v Italy, Appeal Judgment Case No 31171/2008, ILDC 1085 (IT 2008); see also L Millet in Pinochet (No 3) (n 26) 177; P Webb, ‘Human Rights and the Immunities of State Officials’ in De Wet and Vidmar, (n 9) 122–3.
32 As far as the immunity of international organizations is concerned, courts in Europe have relied on art 6(1) ECHR to lift immunity in employment disputes, where the international organization had not provided for an alternative remedy. However, outside the context of employment disputes, courts remain reluctant to lift the immunity of international organizations. In one isolated and older Argentine case, the court ruled that the absence within an international organization of a dispute resolution mechanism pertaining to private claims violated a peremptory norm of international law, namely the right of access to justice. See Cabrera v Comisión Técnica Mixta de Salto Grande, 305 Fallos de la Corte Suprema 2150 (5 December 1983). For an extensive discussion of case law see Pavoni (n 30) 99. See also Reinisch, A ‘The Immunity of International Organizations and the Jurisdiction of Their Administrative Tribunals’ 7 (2008) Chinese Journal of International Law 285 ff.CrossRefGoogle Scholar
33 Jurisdictional Immunities of the State (Germany v Italy, Greece Intervening) (Judgment)  ICJ Rep, 39, para 97.
34 See H van der Wilt, ‘On the Hierarchy between Extradition and Human Rights’ in De Wet and Vidmar, (n 9) 149.
35 See van der Wilt (n 34) 154. See also Soering v United Kingdom, (App No 14038) (1989), Series A No 161, para 88; Vilvarajah and Others v United Kingdom (App No 45/1990/236/302-306) (1991), 14 EHRR 248, para 108; Security v Prabakar  HKCFA 43,  1 HKLRD 289 (Hong Kong), ILDC 1121 (HK 2004).
36 Orakhelashvili, A, Peremptory Norms in International Law (Oxford University Press, Oxford, 2006) 9.Google Scholar
37 See Milanovic, M, ‘Norm Conflict in International Law: Whither Human Rights?’ (2009) 20 Duke Journal of Comparative and International Law 69, 78–9; See also Chinkin (n 22) 63.Google Scholar
38 Shelton, D, ‘International Law and “Relative Normativity”’ in Evans, M, International Law (Oxford University Press, Oxford, 2009) 178.Google Scholar
39 The Fragmentation Report (n 25) para 335 referred to art 103 as ‘a means for securing that Charter obligations can be performed effectively and not [a means for] abolishing other treaty regimes’.
40 Tzanakopoulos (n 21) 66.
41 R (on the application of Al-Jedda) (FC) (Appellant) v Secretary of State for Defence (Respondent)  UKHL 58 (2008); 1 AC 332; ILDC 832 (UK 2007), para 34.
42 Art 25 of the UN Charter provides: ‘The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter.’
43 In this respect see also Shelton (n 38) 178.
44 Youssef Nada v State Secretariat for Economic Affairs and Federal Department of Economic Affairs, Administrative Appeal Judgment, BGE 133 II 450, 1A 45/2007; ILDC 461 (CH 2007), 14 November 2007, para 6.2.
45 Case of Nada v Switzerland, ECHR, App No 10593/08, Judgment of 12 September 2012, para 180, where the Court reasoned: ‘In view of the foregoing, the Court finds that Switzerland enjoyed some latitude, which was admittedly limited but nevertheless real, in implementing the relevant binding resolutions of the UN Security Council.’
46 The applicant with severe health problems was not allowed to enter Switzerland and, thus, leave the small Italian enclave surrounded by Swiss territory. As a consequence, he could not reach other areas of Italy – the state of his citizenship – and seek medical attention there. In such peculiar circumstances different human rights concerns can arise than in a situation where the person can move within a larger territory and has access to the necessary facilities. Ibid paras 195–198.
47 Joined Cases C-402/05 P and C-415/05 P Kadi and Al Barakaat  ECR I-6351.
48 Kadi decision (n 47); Nada decision (n 44).
49 Compare below (nn 54–56).
50 In accordance with art 30(3) of the VCLT this rule only applies where the parties to the latter treaty are identical to those of the former treaty. See also below (nn 54–56).
51 See Fragmentation Report (n 25) para 11, which also referred to the principle as a standard technique of legal reasoning.
52 See Fragmentation Report (n 25) para 129 and para 152, which described fields of functional specialization such as international trade law or international human rights law as lex specialis. One area where lex specialis may be playing a (limited) role, concerns norm conflicts between the law of immunities and human rights. The United Nations Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment played a central role in the outcome of the Pinochet (No 3) decision (n 26). Three of the six Lords (Browne-Wilkinson, Hope and Saville) relied upon the argument that parties to the treaty waived immunity ratione materiae. This argument amounts to attributing a lex specialis effect to the treaty. See also Webb (n 31) 144.
53 See A Ziegler and B Boie, ‘The Relationship between International Trade Law and International Human Rights Law’ in De Wet and Vidmar, (n 9) 290.
54 Art 30, para 1, VCLT. See also Fragmentation Report (n 25) paras 229–30.
55 See also Fragmentation Report (n 25) para 234.
56 See also Fragmentation Report (n 25) para 253.
57 See Fragmentation Report (n 25) para 254; Pavoni (n 30) 78, followed this interpretation when analysing the approach of the ECtHR regarding the relationship between the ECHR and other treaties (including constitutive instruments of international organizations), which were binding on ECHR parties.
58 Fragmentation Report (n 25) paras 254 and 272; Pavoni (n 30) 78–9.
59 Fragmentation Report (n 25) paras 427 and 479.
60 Fragmentation Report (n 25) para 462.
61 A well-known example is the Al-Adsani decision (n 30) para 55; Fragmentation Report (n 25) para 174.
62 De Wet and Vidmar (n 9) 3.
63 D Shelton, ‘Resolving Conflicts between Human Rights and Environmental Protection: Is There a Hierarchy?’ in De Wet and Vidmar, (n 9) 235.
64 Ivcher Bronstein v Peru (2001) Inter-Am. Ct. H.R. (Ser. C) No 74; Mayagna (Sumo) Awas Tingni Community v Nicaragua 2001 Inter-Am. Ct. H. R. (Ser. C) No 79; Moiwana Village v Suriname (2005) Inter-Am. Ct. H.R. (Ser. C) No 124; Yakye Axa Indigenous Community v Paraguay (2005) Inter-Am. Ct. H.R. (Ser. C) No 125 paras 124–127; Saramaka People v Suriname Inter-Am. Ct. H.R. (Ser. C) No 172; Sawhoyamaxa Indigenous Community v Paraguay (2006) Inter-Am. Ct.H.R. (Ser. C) N. 146. See also Karamanian (n 29) 252.
65 Afr. Comm. HPR, Case 276/2003 (2010), Centre for Minority Rights Development (Kenya) and Minority Rights Group International on behalf of the Endorois Welfare Council v Kenya, available at <www.up.ac.za/chr>. See also Shelton (n 63) 218–19.
66 See Glamis Gold Ltd v United States (2009) UNCITRAL Case, Award. The arbitral tribunal avoided any express reference to the human rights impact of the mining investment on the indigenous community. Similarly Biwater Gauff (Tanzania) Ltd v Tanzania (2008) ICSID Case No ARB/05/22, Award. The case concerned conflicts between investor rights and the right to health and clean water. See also Suez v Argentina (2010) ICSID Case No ARB/03/17, Decision on Liability; Methanex v United States (2005) UNCITRAL Case, Award, 44 ILM 1345; Karamanian (n 29) 269.
67 J Vidmar, ‘Norm Conflicts and Hierarchy in International Law: Towards a Vertical International Legal System?’ in De Wet and Vidmar, (n 9) 33–4.
68 Jones v Ministry of the Interior of the Kingdom of Saudi Arabia  UKHL 26, paras 44–45; Al-Adsani decision (n 30) para 61; Bouzari v Iran, 243 D.L.R. (4th) 406, ILDC 175 (CA 2004) para 90.; Schreiber v Germany and Canada  3 S.C.R. 269, ILDC 60 (CA 2002); Webb, (n 31) 118; Pavoni (n 30) 74.
69 Al-Adsani decision (n 30) paras 35–41.
70 (n 33).
71 van der Wilt (n 34) 165–6.
72 Al Moayed v Germany, ECtHR, App No 35865/03, 20 February 2007, para 67 ff; Judge v Canada (829/1998) 5 August 2002, UN doc CCPR/C/78/D/829/1998, para 10.9; United States v Burns , 1 SCR 283; Mohamed and another v President of the Republic of South Africa and others, 2001 (3) SA 893 (CC) ILDC 284 (ZA 2001) para 3.1.1; Short v The Netherlands, 1990 NJ 1991, 249. See also van der Wilt (n 34) 167.
73 Similarly, in the area of refugee law, states have defined refugee status in a very narrow manner. As a result, the duty not to refoule under the 1951 Refugee Convention rarely arises. See G Gilbert, ‘Human Rights, Refugees and Other Displaced Persons in International Law’ in De Wet and Vidmar, (n 9) 190 ff.
74 For example, in R (on the application of Bary) v Secretary of State for the Home Department  WL 2392232; the House of Lords did not, under the circumstances, accept harsh prison conditions combined with the possibility of life without parole in a Florida prison as a bar to extradition. See also van der Wilt (n 34) 156.
75 See, for example, United Nations Committee against Torture, Chipana v Venezuela, CAT/C/21/D/110/1998, para 3; United Nations Human Rights Committee, 31 July 2008, Maksudov, Rakhimov, Tashbaev and Pirmatov v Kyrgystan, CCPR/C/93/D 1461, 1462 and 1447/2006, para 12.4; Saadi v Italy, ECtHR, App No 37201/06, 27 February 2008, paras 138, 139. See also van der Wilt (n 34) 170.
76 Inter-Am. Comm. H.R., Report on the Situation of Human Rights in Ecuador, OAS doc. OEA/Ser.L/V/II.96, doc 10 rev.1, 24 April 1997 at 92; Leon and Agnieszka Kania v Poland, ECtHR, App No 12605/03, 21 July 2009, para 102; Borysewicz v Poland, ECtHR, App No 71146/01, 1 July 2008, para 55; J.K. Koolwal v State of Rajasthan and Others, 1988 A.I.R. (Raj.), 2; K.M. Chinnappa, T.N. Godavaram Thirumalpad v Union of India and Others,  INSC 453; Narmada Bachao Aandolan v India and Ors, AIR 2000 SC 3751, ILDC (IN2000). See also Shelton (n 38) 225–6.
77 See also Shelton (n 38) 226 ff.
78 Domestic cases that upheld immunity ratione personae of state officials and (implicitly) supported the procedural-substantive distinction include inter alia Affaire Kadhafi, Judgment No 1414 (Court de Cassation, 13 March 2001) 125 ILR 508–10; Court de Cassation (Chambre Criminelle) 19 January 2010, L’Association Fédération Nationale des victimes d’accidents collectifs ‘Fenvac sos catastrophe’, L’association des familles des victimes du ‘Joala’, Arrêt No 09-84.818; The Hague City Party and ors v The Netherlands and ors, Interlocutory Proceedings, KG 05/432, ILDC 849 (NL 2005); Bow Street Magistrates’ Court, Re Mofaz, First Instance unreported (12 February 2004), ILDC 97 (UK 2004); Bow Street Magistrates’ Court, Re Mugabe, First Instance unreported (14 January 2004), ILDC 96 (UK 2004); Res Sharon and Yaron Final Appeal, No P 02 1139 F/1 (Court de Cassation, 12 February 2003), ILDC 5 (BE 2003). See also Webb (n 31) 1136–7.
79 Jurisdictional Immunities of the State – decision, (n 33) paras 52 ff. See generally Webb (n 31) 118; Pavoni (n 30) 74.
80 But see Pavoni (n 30) section 75. In the alternative one may argue that what is at stake is the right to a remedy and reparations for victims of serious violations of human rights, which constitutes a substantive right. See also H Fox, The Law of State Immunity (2nd edn, Oxford University Press, Oxford, 2008) 159.
81 See inter alia Lord Hutton in Pinochet (No 3) (n 26); Bouterse, Judgment on Appeal, HR 00749/01 CW 2323; ILDC 80 (NL 2001) para 4.2, Joint Separate Opinion of Judges Higgins, Kooijmans and Buergenthal, Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium) (Merits)  ICJ Rep 3, para 85.
82 Webb (n 31) 122. Also, Webb (n 31) 142 elaborates on the emerging practice of treating civil and criminal proceedings differently with respect to immunities, which she also regarded as an (unconvincing) conflict avoidance technique.
83 Kadi decision (n 47).
84 For a similar dualistic approach in the courts of the United Kingdom, see HM Treasury v Mohammed Jabar Ahmed and others (FC); HM Treasury v Mohammed al-Ghabra (FC); R (Hani El Sayed Sabaei Youssef) v HM Treasury  UKSC 2 para 148 (Lord Phillips); para 168 (Lord Rodger); para 196 ff (Lord Brown). See also Tzanakopoulos (n 21) 53.
85 Nada decision (n 44).
86 Samantar v Yousuf, No 08-1555 slip op (US 1 June 2010), ILDC 1505 (US 2010). See also Webb (n 31) 133.
87 For a similar technique in the area of trade law, see United States v Lombardo and ors, Ruling on Motion to Dismiss, Case No 2:07-CR-286- TS (D Utah); ILDC 1055 (US 2007). The court refused to apply directly a decision of the WTO Appellate Body pertaining to the General Agreement on Trade in Services (GATS) and applied only United States federal law. Ziegler and Boie (n 53) 292 argued that in doing so, the court avoided the need to resolve whether an international trade related obligation conflicted with any other (international) right or obligation, including one of a human rights nature.
88 There is the risk that the integration of trade and human rights obligations within the same treaty framework could undermine human rights protection as a value in itself and reduce the latter to a mere instrument of free trade protection. For support of such integration see Petersmann, EU, ‘Time for a United Nations “Global Compact” for Integrating Human Rights into the Law of Worldwide Organizations: Lessons from European Integration’ (2002) 13 European Journal of International Law 621. But see also Alston, P, ‘Resisting the Merger and Acquisition of Human Rights by Trade Law: A Reply to Petersmann’ (2002) 13 European Journal of International Law 843. See generally also Howse, R, ‘From Politics to Technocracy: and Back Again: The Fate of the Multilateral Trading Regime’ (2002) 96 American Journal of International Law 94; Howse, R and Nicolaidis, K, ‘Legitimacy through “Higher Law”? Why Constitutionalizing the WTO Is a Step Too Far’ in Cottier, T and Mavroidis, P (eds), The Role of the Judge in International Trade Regulation: Experience and Lessons for the WTO (University of Michigan Press, Ann Arbor, 2003). This debate is, however, concerned with a treaty-based fusion of the two regimes. The present article, on the other hand, considered the conflicting interaction between the two parallel regimes and their systemic integration through judicial decisions, without aiming to redesign the underlying treaty framework.