Coordination of Different Principles and Values in International Law
32 Pages Posted: 25 Apr 2018
Date Written: April 15, 2018
The theme of coordination between different principles and values is becoming central to contemporary international law. This is because the latter has become a broad and complex legal system and is going through a phase of profound transformation. This also implies a paradigmatic and ideological change of the international legal order, which tends to shift from a law of rules to a law of values. In this transition phase, conflicts occur especially between the principles of "old" international law and the principles of "new" international law. In this paper it is claimed that, in international law, three different methods are used to try to resolve the antinomies between conflicting principles: a) a "traditional positivist" method; b) a "modern positivist" method; c) a "value-based" method. These three methods are strictly linked to three different conceptions on the sources of general international law and on the means for identification of that law. This article examines separately the three methods and the practical results to which they arrive, using as a main example the conflict between principles on international immunities and principles on fundamental human rights. The conclusion is that the interpreter should today avoid the "traditional positivist" method, because it is now unsuitable for the reality of contemporary international law. Instead, he should use both the "modern positivist" method and the "value-based" method, coordinating them among themselves.
Keywords: Conflicting principles, Antinomies, Sources of international law, Jus cogens, Immunities, Fundamental human rights, Access to justice, Balancing
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