Academic

Kjeldgaard-Pedersen on International Norm Conflicts

By Lawrence Solum

Astrid Kjeldgaard-Pedersen (University of Aarhus) has posted New Contributions to the Debate on International Norm Conflicts? (EU-ret og Menneskeret, Vol. 15, No. 6, December 2008) on SSRN.  Here is the abstract:

International lawyers have long been interested in finding the right solution for the conflict that occurs when a state cannot at the same time fulfill its obligations to the UN and, for example, the European Convention on Human Rights or the EC Treaty. In two recent cases, the European Court of Human Rights and the European Court of Justice were confronted with this issue. In May 2007, the European Court of Human Rights refused to admit an application where the potential violation of the Convention had taken place during the exercise of functions delegated to the relevant member states by the UN Security Council acting under Chapter VII of the UN Pact (Behrami and Behrami v. France and Saramati v. France, Germany and Norway). A little more than a year later, in September 2008, the European Court of Justice stated that the Community judicature is always competent to review the lawfulness of a Community act, even if the purpose of the act is to give effect to a Security Council resolution (Yassin Abdullah Kadi and Al Barakaat International Foundation v. the Council of the European Union).

It is the object of this article to shed light on the range of these two decisions. It will be clarified whether they are compatible when the particular circumstances of each case are taken into consideration. Finally, the article will determine whether we have now been brought closer to a model for resolving norm conflicts between UN resolutions and other international rules, including human rights.

Full post as published by Legal Theory Blog on January 14, 2009 (boomark / email).