Jure Vidmar

Hierarchy in international law : the place of human rights

1. Introduction 2. Norm Conflicts and Hierarchy in International Law: Towards a Vertical International Legal System? 3. Human Rights and United Nations Security Council Measures 4. Human Rights and the Immunities of Foreign States and International Organizations 5. Human Rights and the Immunities of State Officials 6. On the Hierarchy between Extradition and Human Rights 7. Human Rights, Refugees and Other Displaced Persons in International Law 8. Resolving Conflicts between Human Rights and Environmental Protection: Is there a Hierarchy? 9. Human Rights Dimensions of Investment Law 10. The Relationship between International Trade Law and International Human Rights Law 11. Conclusions

Rethinking Jus Cogens after Germany v. Italy: Back to Article 53?

Article 53 of the Vienna Convention on the law of Treaties provides that a treaty is void if it conflicts with jus cogens. It is theoretically possible that two or more states would conclude such a treaty, yet this is not very likely in practice. The question thus arises how jus cogens operates outside of Article 53 situations and outside of treaty law in general. A ‘trumping effect’ of jus cogens over all other norms of international law has been proposed in some writings and judicial decisions. Such views have been shattered by the ICJ, most recently (but not exclusively) in Germany v. Italy. Jus cogens seems to be back to Article 53 and its (rather theoretical) voiding powers. Considering the latest judicial decisions, this article aims to place jus cogens within the international legal system. It demonstrates that jus cogens is not a futile concept; but it is wrong to see it as a trump card.

Conflicts between International Paradigms: Hierarchy Versus Systemic Integration

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.

The Kosovo Advisory Opinion Scrutinized

In the Kosovo Advisory Opinion, the International Court of Justice took the position that Kosovos unilateral declaration of independence did not violate any applicable rules of international law. This article does not dispute the final finding, but rather critically examines the Courts somewhat controversial reasoning and considers the added value of the opinion for the clarification of legal doctrine in relation to unilateral declarations of independence. An argument is made that the Courts interpretation of the question and the identification of the authors of the declaration had significant implications for the Courts final finding. Yet, the Court cannot be criticized for not answering the question of whether or not Kosovo is a state, whether Kosovo Albanians are beneficiaries of the right of self-determination, or even whether the ‘right to remedial secession’ is applicable. However, the Court may well have implicitly answered that recognition of Kosovo is not illegal.

Multiparty Democracy: International and European Human Rights Law Perspectives

Although multiparty elections are not explicitly required by international human rights instruments or the European Convention on Human Rights (ECHR), certain human rights provisions have been interpreted as leading to such a requirement. While a democratic interpretation of human rights law has been settled in the ECHR framework, it remains disputable at the universal level. Despite numerous references to democracy in the documents adopted in the UN framework in the post-Cold War era, this article argues that an explicit link between international human rights law and multiparty elections has yet to be established. On the other hand, such a link has been developed by the European Court of Human Rights (ECtHR). Multiparty elections are considered to be part of the European public order. Moreover, the ECtHR has shown that it understands democracy beyond the existence of electoral procedures. But the role and understanding of democracy within the ECHR cannot be universalized.

Explaining the Legal Effects of Recognition

Recognition in contemporary international law is generally seen as a declaratory act. This is indeed the only plausible explanation in situations where a new state emerges consensually and in the absence of territorial illegality. Unilateral secession and territorial illegality, however, create different legal circumstances in which the applicable rules of international law imply and even presuppose that (collective) recognition could have constitutive effects. The article thus suggests that the interpretation of the legal nature of recognition and non-recognition should not start on the premise that recognition always merely acknowledges the fact of the emergence of a new state. This is not to say that states cannot exist without being recognised. Rather, the legal effects of recognition may depend on the mode of a certain (attempt at) state creation.

States, Governments, and Collective Recognition

This paper considers recent international practice on recognition of states and governments and identifies the avenues of granting recognition collectively. In so doing, it determines the legal relevance and irrelevance of international recognition and draws the conceptual difference between the concepts of collective recognition of states and governments in contested territorial situations. Particular regard is paid to the status of Taiwan and the nexus of recognition of states and governments on this example.

Territorial Entitlement and Exit Scenarios

A number of territorial referendums have been held recently across Europe, perhaps the most significant ones being in Crimea and Scotland. For 2016, an EU-exit referendum has been announced in the United Kingdom. This chapter is concerned with the various exit situations and clarifies the effects of territorial referendums, as well as the nature of territorial entitlement in international law. It argues that territorial entitlement is not absolute and expressions of the will of the people, in principle, do not have self-executing effects. Although the EU is not a state, an exit from this complex legal association poses several questions similar to those that arise under the circumstances of secession. It is argued that solutions to these legal questions should indeed be sought analogously with secessionist scenarios.

Some Observations on Wrongfulness, Responsibility and Defences in International Law

In this article, I argue that international law has a major structural crack: the limited international legal capacity of non-states, and a high threshold of attribution to states. A great deal of international conduct thus remains unregulated. I further explain that this is not only a gap in responsibility but in fact a gap in international legal regulation. The law of international responsibility overlaps with the law of international legal capacity. For the most part, it is thus only states and international organisations which are even conceptually able to violate international law directly. If a certain conduct is not attributable to them, it will not be internationally wrongful. I also suggest that the division between the primary and secondary rules of international law is confusing and arbitrary, and certainly should not be understood as a sequential order. In the conclusion I argue that scholarship has been perhaps too preoccupied with addressing certain symptoms of the ‘great structural crack’ in international law, while the real problem lies in the unclear concept of international legal capacity.

Democratic Legitimacy between Port-Au-Prince and Cairo: A Reply to Erika De Wet

In the 1990s, international legal scholarship was marked by democratic idealism and the belief that democracy had become the only legitimate political system. The more radical proposals even speculated about legality of pro-democratic intervention. Such re-conceptualizations of international law were met with determined criticism. However, even skeptical voices were willing to admit that democracy nevertheless did have some limited normative force in post-Cold War international law. While it would be an exaggeration to say that nondemocratic governments are illegitimate per se, a consensus started to emerge that international law prohibited at least a coup against a democratic government. In the absence of a workable definition of substantive democracy for international law purposes, a democratic government was understood as an authority which comes to power in an electoral process that is reasonably free and fair.