Conflicts between International Paradigms: Hierarchy Versus Systemic Integration

Global Constitutionalism, 2013, Forthcoming

24 Pages Posted: 25 May 2013 Last revised: 27 May 2013

See all articles by Erika de Wet

Erika de Wet

University of Amsterdam - Faculty of Law

Jure Vidmar

Maastricht University - Faculty of Law

Date Written: March 30, 2013

Abstract

International law has developed as a horizontal system of norms in which no norm enjoys an automatic hierarchical superiority. Some theoretical concepts and judicial decisions have nevertheless suggested that a hierarchy was emerging in the international system of norms, with human rights at its apex. This article draws on the study of case law of domestic, regional and international judicial bodies to determine whether human rights are indeed given precedence over other international legal obligations. The article demonstrates that in the de-centralised international legal system, a preference given to one type of obligations may be a matter of functional bias rather than fully-fledged hierarchy. Human rights bodies may well favor human rights but this preference is not the universal pattern significant for all tribunals. Nevertheless, human rights obligations play a prominent role in the decisions of international bodies functioning within a different functional paradigm (e.g. WTO panels, investment arbitrations) as well as in jurisprudence of domestic courts. But these decisions do not suggest any hierarchy in international law. They rather reflect the approach of systematic integration of international legal obligations.

Keywords: hierarchy of norms, systemic integration, norm conflict, human rights

Suggested Citation

de Wet, Erika and Vidmar, Jure, Conflicts between International Paradigms: Hierarchy Versus Systemic Integration (March 30, 2013). Global Constitutionalism, 2013, Forthcoming, Available at SSRN: https://ssrn.com/abstract=2269703

Erika De Wet

University of Amsterdam - Faculty of Law ( email )

Amsterdam, 1018 WB
Netherlands

Jure Vidmar (Contact Author)

Maastricht University - Faculty of Law ( email )

P.O. Box 616
Maastricht, 6200
Netherlands

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