Norm Conflict in International Law: Whither Human Rights?

Abstract

INTRODUCTION Two incontestable features of modern international law--the multiplicity of its law-making processes and the ever-increasing variety of the subject-matter that it seeks to regulate--have one invariable consequence: the increasing likelihood of norm conflict, part of the phenomenon of fragmentation of international law. Much work has been devoted to this topic, and, as is well known, it has already been the object of a comprehensive study by the International Law Commission (ILC). Unlike much of the theoretical work on the subject, this article attempts to deal with the practicalities of norm conflict. Like the ILC Study, it will try to further develop the toolbox that judges and lawyers have at their disposal when dealing with cases involving a collision of norms) It will do so by focusing on situations in which one of the conflicting rules is a rule of human rights law, and, more specifically, on those norm conflicts in which some other international rule, for instance a UN Security Council resolution, attempts to prevail over or is at the very least equal to a human rights norm. Such cases of norm conflict are becoming more and more frequent and deal with matters of great political importance, such as the targeted sanctions against or the preventative detention of suspected terrorists. There are several other reasons for this emphasis on human rights. First, human rights norms operate not only between states, but also between states and individuals. This does not mean that human fights law is not about inter-state obligations, but that it is not reducible to synallagmatic bargains between states. (3) Second, because of the community interest and values that human fights norms enshrine, norm conflict situations involving human rights are, as we shall see, frequently considered to be of constitutional importance, even though human fights norms are per se not hierarchically superior to other norms of international law. These conflicts inspire the use of the language of constitutionalism--very fashionable these days (4)--which can be observed in most of the cases that we will examine. Third, a focus on human rights is useful since, for public international lawyers, human fights (and human rights lawyers) are one of the principal culprits of fragmentation. (5) To the generalist, the human rights lawyer's (6) misguided belief that wishful thinking is a law-making process and tendency toward what Alain Pellet calls droit de l'hommisme lead him to assert that the special nature of human rights somehow warrants deviations from general international law. (7) From a generalist perspective, the human rightist penchant for special solutions is deeply troubling, since it disrupts the systemic quality of general international law. Human rights norm conflicts thus expose not only the various constitutionalist agendas and projects, but also the universalist agenda espoused by general international lawyers. As stated above, this article will examine those normative conflicts where a putatively hierarchically superior norm attempts to override or prevail over a conflicting human fights norm. Both in practice and in the literature, the posture is usually the other way around--it is human rights that (supposedly) override other rules, not vice versa. One concept in particular is often invoked in that regard, especially by scholars--jus cogens, the body of peremptory norms of international law, most of which deal with human rights. (8) However, even a casual survey of the jurisprudence would show that jus cogens is used rarely, if ever, to invalidate supposedly conflicting norms. On the contrary, courts generally exhibit a tendency to do what they can to avoid norm conflicts. To my knowledge there is perhaps only one, rightfully much-maligned case (9) where jus cogens was successfully invoked to resolve a norm conflict, (10) and even in that case it is not entirely clear whether it was decided on norm conflict grounds. …