Tuesday, May 28, 2013

de Wet & Vidmar: Conflicts between International Paradigms: Hierarchy Versus Systemic Integration

Erika de Wet (Univ. of Amsterdam - Law) & Jure Vidmar (Univ. of Oxford - Law) have posted Conflicts between International Paradigms: Hierarchy Versus Systemic Integration (Global Constitutionalism, forthcoming). Here's the 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.