Norm Conflict in International Law: Whither Human Rights?

79 Pages Posted: 3 Apr 2009

See all articles by Marko Milanovic

Marko Milanovic

University of Reading - School of Law

Date Written: April 2, 2009


The article examines norm conflicts, defined as situations where one norm constitutes, has led to, or may lead to a breach of another, and particularly those norm conflicts in which one of the conflicting norms is a rule of human rights law. Such instances occur more and more every day, are increasingly litigated, and can be of great political importance. For example, a human rights treaty might prohibit the preventative detention or internment of persons under any circumstances, while the UN Security Council might pass a resolution actually authorizing such detention, say in relation to suspected terrorists. What does then happen when a state's obligations under a human rights treaty conflict with its obligations under the UN Charter?

In that regard, one possible solution is that pursuant to Article 103 of the UN Charter, obligations under the Charter - including binding Security Council resolutions - prevail over conflicting treaty obligations of the UN member states. The article will explore whether the Council can displace international human rights treaties, and if so, how can such a development be curtailed or avoided. It will elaborate on various forms of norm conflict resolution and avoidance, and will discuss the recent jurisprudence of the House of Lords (Al-Jedda), the European Court of Human Rights (Behrami and Bosphorus) and the courts of the European Union (Kadi). The article thus provides a systematic overview of the impact of norm conflicts on the protection of human rights in a fragmented international legal order.

Keywords: international law, norm conflict, human rights, fragmentation, Behrami, Al-Jedda, Kadi, Bosphorus

Suggested Citation

Milanovic, Marko, Norm Conflict in International Law: Whither Human Rights? (April 2, 2009). Duke Journal of Comparative & International Law, Vol. 20, No. 1, 2009, Available at SSRN:

Marko Milanovic (Contact Author)

University of Reading - School of Law ( email )

Reading, RG6 6AH
United Kingdom

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Abstract Views
PlumX Metrics