I. Values In International Law

A norm represents a value, and a value represents interests in terms of benefits or advantages that an individual or a community derives from that norm.Footnote 22 A society desirous of impeding the construction of factual and counter-factual recurrences that may impair values constructs norms by recruiting specific value representations. Accordingly, any discourse in the construction of international law that disconnects norms from the represented values blurs the necessary component of the social element in international law-making. In real-life situations, norms may conflict with one another, with the resolution of these conflicts being of foremost importance for any legal system. Once we hold that every norm represents a value, these normative conflicts can be treated as conflicts of values. This juxtaposition of norms with values helps us better understand and solve the normative conflicts.

Martti Koskenniemi, however, presents international law as a technique of articulating political claims in terms of legal rights and duties.Footnote 23 He holds that the construction of international law is based on unilateral pronouncements of self-appointed hegemonic states.Footnote 24 He rejects the existence of any “absolutes” of international law, and describes international law as “a process of articulating political preferences into legal claims that cannot be detached from the conditions of political contestation in which they are made”.Footnote 25 Although the hegemonic patterns of international legal order cannot be altogether brushed aside, I contend that due to the interdependency of its members, international society is experiencing a gradual evolution that is revolutionizing the nature of international law.Footnote 26 There is indeed a gradual subordination of individual sovereignties to the common good and the absorption into contemporary international law of the values that this common good encompasses.Footnote 27

The proclamation of concepts like “interest of mankind as a whole”, “international community of states as a whole”, or “common heritage of mankind” explains why the international community recognizes, for example, a ban on the unilateral use of force or insists on the promotion of the right of peoples to self-determination or the protection of human rights. In other words, there is a collective experience in international society of being part of an integrated system reflecting and protecting the deepest values and most basic expectations of its subjects. This collective experience does not rest only on immediate calculations of utility,Footnote 28 but is instead progressing towards those “absolutes of international law”, which also becomes the basis of resolving normative conflicts.

As a consequence of functional and regional fragmentation, the International Law Commission's (ILC) Report recognizes the loss of an “overall perspective of law”.Footnote 29 However, it absolutely connects the nature and development of international law with its being a means of articulating political preferences as legal claims, which cannot therefore be detached from the conditions of political contestation in which they are made.Footnote 30 The ILC Report, indeed, explicitly states that political preferences drive the development of international law:

Koskenniemi similarly claims that international law “is a surface over which political opponents engage in hegemonic practices, trying to enlist its rules, principles and institutions on their side, making sure they do not support the adversary”.Footnote 32

From a different perspective, Jean d'Aspremont also rejects the existence of a value system in the international legal order.Footnote 33 His argument is based on the proclamation that the “driving forces” of international law-making are not immutable but subject to constant and contingent changes.Footnote 34 He claims that these driving forces are in fact variable “common interests” as compared to constant “global values”.Footnote 35 The gist of his argument is that an agreement of the international community on a particular norm does not reflect common ground—an ultimate goal or value—on the basis of which it has accepted that norm, but is instead based solely on the self-serving reasons of states. For example, the norms relating to peace preservation are backed by the major powers because of a desire to avoid the detriments of war, whereas the small states back the prohibition on the use of force to protect themselves from the more powerful states.Footnote 36 Thus, while accepting the norm of prohibition on the use of force, states do not have a belief in the preservation of peace as an objective value represented by that norm.

How do we consolidate Koskenniemi's and d'Aspremont's views? While d'Aspremont's distinction between values and the mutualization of interests is particularly eccentric, as it deviates from the conventional understanding on the formation of values and undermines the role of values in the construction of norms in international law, there also appears to be something missing in this juxtaposition of law, politics, and individualism that patronizes the development of international law. These approaches appear to be a misreading of the study of values by presenting them as self-serving and lobbied preferences.Footnote 37 Where is the social element of law in these readings?Footnote 38 No society is composed of equals, and no norms emerge on the basis of equality among all subjects.Footnote 39 The same holds true for international society, which is highly pluralistic and heterogeneous.Footnote 40 The diverse process by which consensus is achieved for the formulation of norms does not change the basic ideals prevalent in and cherished by international society. There are certain social causes and ultimate purposes that international society strives to achieve.Footnote 41 International society may, however, be conceived of as an anarchic society as compared to a “moral project”,Footnote 42 where one cannot categorically conclude that the members of this society do not share dominant values of state security and join the growing demand to emphasize human security.Footnote 43 A logical interpretation of d'Aspremont's view makes his theory based on alternative realities analogous to asserting that a law-maker voted for the criminalization of homicide for the sole reason that she was afraid of being murdered herself.

Such readings of international law also erroneously conflate “values” with “norms”.Footnote 44 Norms are the medium to realize corresponding prevalent values.Footnote 45 In every society, values exist and are only internalized in the form of norms.Footnote 46 On an international level, this internalization is reflected by the development of jus cogens, customs, or general principles of law, or by way of incorporating norms in treaties,Footnote 47 each representing a different stage of internalization. This internalization no doubt progresses in the presence of varied political motivations and complicated international relations. It would, therefore, be difficult to capture all intentions underlying a given norm.Footnote 48 It can be done, however, in some cases: for “aggression”, the corresponding value can clearly be identified as “peace”; for “self-determination”, “freedom”; for “self-defence”, the “protection of life and property”; and for the term “terrorist”, the value can be “security”. This necessarily abstract norm/value juxtaposition may lead to different characterizations or may also result in the overlapping of two values in respect of one norm, or vice versa. For example, the corresponding value for “aggression” may be identified as “security” and for “terrorism” as “peace”.Footnote 49 This overlapping in no way suggests that there exists no corresponding value for a given norm.

Jus cogens, in this way of estimation, refers to norms that are recognized as fundamental valuesFootnote 50 that have been fully internalized by international society.Footnote 51Jus cogens, hence, can be termed value consensus or universal values. Most importantly, however, is that this value-internalization process in international law was based neither on the conversion of authority-seeking, lobbied, and politically motivated views into universal preferences nor on the self-serving reasons contemplated by d'Aspremont. There is a social element in the development of norms in international law that is based on the collective good of the society. Through the course of this internalization process, the gradual realization by the international community of the social benefits secured by the resulting norms overpowered any differences arising from unilateral preferences or individual benefits. This internalization process represents a value system in international society, which not only explains norms in terms of values but also facilitates their hierarchical ordering in any given context.

Koskenniemi's denial of the role of values in the development of international law is also based on the conceptual disagreement of the international community on the understanding of particular norms.Footnote 52 I, however, contend that the international community is not utterly divided on values in respect of the norms to which they correspond. In other words, while there might be disagreement on the conception of a norm, there is hardly any disagreement on its corresponding value. For example, there is no disagreement on the maintenance of “peace” in international relations, although there are disagreements on what constitutes “aggression”. International law provides for a norm prohibiting aggression in view of the fact that it corresponds to the value of peace, representing the benefit and interest to all members of the international community whether perceived as weak or strong. Aggression, in whatever way defined, would amount to a disturbance of peace. The norms are, therefore, based on facts and are subject to interpretation, whereas values are based on the collective wisdom of the international community and subject to legal identification, allocation, and, in cases of conflict, hierarchical ordering. The disagreement might, however, be on the extent to which these values have been internalized by international society. The ILC Report has, in fact, suggested of this value orientation in the development of international law:

A significant problem with this legal evolution is illustrated by this question: What would happen when the norms in these legal specializations evolve in a way that they clash with each other? In international law, it has been presumed that there exists no predetermined authoritative hierarchy of values,Footnote 54 resolving any normative conflicts on an a priori basis. This primarily suggests that all values stand on equal footing since each one of them protects fundamental interests. It is generally recognized that any ambiguity regarding the meaning of a value-representing norm must be solved by interpretation.Footnote 55 Whether two conflicting norms can be reconciled is also a matter of interpretation. I contend, however, that if they cannot be so reconciled, the norm representing a higher-level value in the given context is to be preferred over the norm representing a lower-level value. In every civilized society, whether national or international, some interests are prioritized. This state of affairs subscribes to an inherent hierarchy of values based on the collective wisdom of the international community. Some norms have already attained the status of jus cogens through the norm-internalization process. These norms are superior to other norms and international society agrees that a norm amounting to jus cogens is to be prioritized over conflicting norms.Footnote 56 With respect to norms other than jus cogens, however, courts and dispute settlement bodies prioritize the most desired value at the expense of the other.Footnote 57 This ordering is a fundamental requirement for harmonious societal functioning.Footnote 58 If, for example, the norms of trade and human rights—neither of which has attained the status of jus cogens—cannot be simultaneously achieved, then the social needs of the international community determine how they are to be ordered.

The development of international legal norms, hence, is not solely based on hegemonic political choice; such development is rather based on social integration, corresponding to and resulting in an international civil society. The extent to which Koskenniemi undermines the role of civil society in the formation and development of international law is questionable. To proceed with the discussion of international law as a value-oriented system, it is helpful to import two quotes from Koskenniemi's article. On one occasion, he quotes Antonio Cassese as follows:

On another occasion, he quotes Judge Mohammed Bedjaoui as follows:

These quotes both refer to the gradual transformation of the international community as a society reflecting values that are realized through a gradual value-internalization process. As stated earlier, this value-internalization process has already reached a consensus in the case of, for example, jus cogens. In international society, therefore, modern international law is evolving in the presence of complex international relations with various political motivations. In other words, there exists a quasi-natural social order in the development of international law.Footnote 61 Where the influence of political power in its formation and development cannot be completely ruled out, then the logical conclusion is that there are, notionally, two constructions of international law. There is, on the one hand, a top-down construction where international law is developing under the influence of political power, as suggested by Koskenniemi.Footnote 62 On the other hand, as proclaimed by Judge Mohammed Bedjaoui, there is a bottom-up construction where international law is evolving in a way similar to domestic laws in that it is influenced by the social necessities of the states comprising the community. In this regard, Koskenniemi at one occasion also appears to have conceded the latter type of construction:

The ICL Report has also reflected a similar opinion:

A third construction of international law is a hybrid of the above two constructions, where there are many actors, some top-down and some bottom-up. This construction, which reflects the divided interests of the international community, is perhaps closer to the thinking of d'Aspremont. In this context, however, d'Aspremont has rightly pointed out that the wellbeing of individuals is subject to continuous reappraisal and is fundamentally relative.Footnote 65 This relativity is, as we shall see later, a necessary part of the solution to normative conflict in the decentralized system of international law. Once we revert to values to explain norms, we can not only understand norms in the light of the interests they serve but also solve normative conflicts, whether in treaties or elsewhere, by assigning a contextual hierarchy. This relative—as compared to an absolute—hierarchy is more feasible and accommodating, given the evolving normative structure of international society as compelled by the continuous changes in the preferences of its members. This evolution will ultimately lead to an absolute hierarchy, if required and agreed to by the international society, as in the case of jus cogens.

“Regionalism”, which calls for values to be perceived in regional contexts and therefore divides international society into distinct groups, is a possible attack on the advocated “universalism” of values. The regionalism argument surfaced in the formation and development of international law on the basis of legal orientations and methods adopted by a particular group of states—for example, Anglo-American, European, Soviet, Third World, or Asian.Footnote 66 Regionalism is also analyzed as an instrument of hegemony where hegemonic blocks are created by “[a] great power in order to ensure supremacy or to redress the balance of power disturbed by the activities of another power elsewhere in the world”.Footnote 67 It is also frequently used as an explanation for rules that originated from or are identified with a specific territory—the Calvo, Drago, and Tobar doctrines, for example—and that operate as an exception to the general principles of international law.Footnote 68

Regionalism is a major obstacle to any universalist international legal order,Footnote 69 as it suggests the absence of a universal character of values, and therefore of the resulting norm formation.Footnote 70 For example, political leaders and intellectuals in the economically successful societies of Southeast Asia used regionalism to question the universality of human rights by referring to “Asian Values”.Footnote 71 The claim of “Asian Values” proposes that human-rights norms can be weighed differently in Asia than, for example, in the European Union, when they conflict with other norms like trade or investment. Although regionalism is believed to have little normative import,Footnote 72 and rarely takes the shape of a general “rule” or a “principle”,Footnote 73 it nevertheless connotes a “rule or a principle with a regional sphere of validity or a regional limitation to the sphere of validity of a universal rule or principle”.Footnote 74 This suggests that regionalism is a kind of lex specialis,Footnote 75 and calls for different hierarchies of conflicting norms and values.Footnote 76 The idea of Asian Values subjects the evaluation of norms and values to specific cultural environments and presupposes that the norm-creation and value-internalization processes stand at different stages in different parts of the world.Footnote 77

II. Treaty Conflict In International Law

Treaties are an important source of international law, and are frequently the forerunners of its developments.Footnote 78 Borgen suggests that “the viability of international law, as a legal system, rests largely on the viability of treaties as a source of law”.Footnote 79 By their contractual nature, treaties are horizontal instruments that have no inherent priority over each other. Treaties, however, perform important functions in the formation of norms in international law, which may be understood in the light of the value-oriented underpinnings on the construction and development of international law. The ILC Report provides that although there is no single legislative will behind international law (which may not, however, always be the case),Footnote 80 legal reasoning involves an objective analysis of rules incorporated in treaties:

Koskenniemi also has suggested:

For the purposes of legal discourse, the juxtaposition of norms and values suggests something akin to Koskenniemi's division, that is, the norms are the units and values are the levels constituted by a group of norms identifiable by a common property. Treaty norms (units) may represent only a mutual value (level) between the states party to that treaty or a universal value (higher level),Footnote 83 depending on the legislative purpose or principles underlying the treaty. In Koskenniemi's terms this amounts to “[a] systematization [that] aims to make explicit the origin and relationship of norms so as to answer questions about normative authority and to solve problems of normative conflict”.Footnote 84 The legal discourse of studying treaty norms in terms of values has a twofold outcome. First, and obviously, it suggests that these norms should be studied in the broader context of the values they represent. Conflict in treaties can thus be understood as conflicts of values in the international society.Footnote 85 Second, it allows the possibility that some treaty norms stand superior to other conflicting ones, depending upon the values they represent.

Treaty conflicts are commonly analyzed in terms of rights and obligations created by treaty norms, rendering treaties as bundles of public or private rights and obligations.Footnote 86 This suggests that treaty conflicts can be resolved by balancing the rights guaranteed by the norms.Footnote 87 The balancing of rights, however, leads to a discussion regarding the “right-obligation” equation, that is, who holds what rights and by whom, against whom, and on what legal basis those rights can be enforced or prioritized.Footnote 88 In this regard, the arguments in this article do not derive from the so-called deontic logic that understands rights in the context of obligations.Footnote 89 In contrast to “rights” and their “balancing”, the arguments in this article are based on “interests” and their “valuing” (levelling in terms of determining hierarchy).

In this vein, the arguments in this article have been developed on the basis of “interests” representing “values”, as compared to rights and duties, and differ from Ronald Dworkin's “rule-principle” paradigm in three ways.Footnote 90 First, as compared to the determination of an objective hierarchy, the deontic content of the rule-principle approach calls for a corrective stance on the part of courts in terms of the “right-wrong” equation, that is, right as compared to its opposite (wrong).Footnote 91 This approach works well only where one of the conflicting treaty norms is jus cogens, thus rendering the other norm void,Footnote 92 but cannot be applied where the equation is rather “right-right” or when the conflicting treaties give “right” norms that conflict with each other. Second, the deontic approach may lead to understanding treaty conflict in terms of a “right-obligation” equation in which a conflict between two norms arises only where a party to two treaties cannot simultaneously comply with both treaties’ “obligations”.Footnote 93 This leads to an analysis of the conflict of treaty norms in terms of treaty obligations having corresponding rights, as compared to mere “permissive” or “voluntary” obligations, and suggests that a norm that creates an obligation having a corresponding right should be prioritized over one that is only permissive and voluntary and whose violation does not infringe any rights.Footnote 94 This approach is obviously unhelpful where both norms create obligations that have corresponding rights. Finally, the abstract subtext of rules and principles, suggested by the deontic approach,Footnote 95 leaves room for political preference to justify the prioritization of one principle over the other.Footnote 96 The perception of treaty conflict in terms of competing rights or obligations, however, remains relevant to understanding the factual nature of a conflict.Footnote 97

As compared to rights, an interest is:

Interests are required to be protected and are fundamentally relative in their legal character. Pound explains the relativity of interests as follows:

A levelling among conflicting interests can, therefore, be achieved even when the interests stand on equal footing, which may be determined by an estimation of the stage reached by the value-internalization process of such interests. An interest may have become a custom or jus cogens. This suggests that in international civil society a hierarchy of values exists that is both predetermined, in the case of one of the conflicting norms is jus cogens, and relative, as in other cases. This hierarchy, both pre- and post-determined, is established on the basis of interests and values protected by norms, and enables the ordering of conflicting norms. In other words, other than normative conflicts involving jus cogens, this hierarchy can only be determined through a contextual evaluation and not by a general rule.Footnote 100 The ILC Report concedes to this objectivism when it comes to solving normative conflicts: “[m]oving from the prima facie view to a conclusion, legal reasoning will either have to seek to harmonize the apparently conflicting standards through interpretation or, if that seems implausible, to establish definite relationships of priority between them”.Footnote 101

In the face of a weaker institutional structure of international law, the members of the ILC were aware of the problems confronting such a hierarchal ordering of norms. The ILC Report, nonetheless, observes the need for a legal, as opposed to a political, solution to normative conflict:

Appropriate interpretive tools and legal devices are, nonetheless, required for the legal determination of normative treaty conflicts. The existing legal framework for such resolution in international law, available both within and outside of the VCLT,Footnote 103 however, fails to provide an appropriate, principled, and legal solution for the resolution of treaty conflicts.

III. Treaty Conflicts And The Despondency Of The Vclt And Other Rules And Principles Of International Law

As discussed earlier, treaty conflicts can be identified as conflicting state obligations acquired under two treaties.Footnote 104 They give rise to problems regarding the validity or enforceability of conflicting state obligations.Footnote 105 More precisely, a conflict or incompatibility arises where two obligations cannot be complied with by all addressees of the obligations under all conditions so specified.Footnote 106 Article 30 of the VCLT contains three tests for the application of the lex posterior rule to resolve the problem of conflicting treaty obligations:

1. 1. What is the subject matter of the treaties in question? (The subject matter test)

2. 2. What is the chronology of their adoption or accession? (The chronology test)

3. 3. Who are the parties to the conflicting treaties? (The contracting parties test)Footnote 107

The VCLT's techniques to solve treaty conflicts have been criticized as unhelpful.Footnote 108 While its rules are workable where parties to an earlier and a later treaty are the same, there are problems with the determination of the subject matter of treaties as well as the time of their conclusion.Footnote 109 The subject matter of a treaty is the interest it primarily purports to protect,Footnote 110 but may encompass specific norms embodying interests to which it does not specifically refer. In other words, an investment-protection treaty may expressly or impliedly contain norms governing human rights. The subject matter of two treaties is the same when any norm incorporated in one treaty is incompatible with that in another.Footnote 111 In other words, the subject matter of two treaties is the same when their individual norms generate a clash of interest.Footnote 112

That a series of treaties dealing with different subject matter create complementary relationships between old and new treaties has been suggested.Footnote 113 For example, with respect to certain bilateral and trilateral treaties on the legal status of the Caspian SeaFootnote 114 and the recent Framework Convention for the Protection of the Marine Environment of the Caspian Sea,Footnote 115 Russia has adopted a “stage approach” whereby specific agreements, such as on fishing, are considered as “incremental” to a comprehensive agreement.Footnote 116 In this sense, the subject matter of two treaties can be treated as the same when any terms defined or norms incorporated in two or more such treaties reciprocate each other, even if both treaties deal with different subject matter.Footnote 117 The Russian “stage approach” to the Caspian Sea agreements that deal with apparently different subject matter and have been inter se concluded between different members of the Caspian Sea littoral states would highly complicate (if not render entirely unmanageable) the application of the Article 30 VCLT tests for the resolution of potential conflicts between these treaties.

Furthermore, adjudicators faced with a treaty that has possibly conflicting objects identify its subject matter in the light of its “primary” object. If all specific agreements are included in a comprehensive treaty on the status of the Caspian Sea, such a treaty will create a situation like that addressed by Article XX of the General Agreement on Tariff and Trade (GATT). While the GATT/World Trade Organization (WTO) Agreement contains various provisions for trade liberalization,Footnote 118 Article XX GATT lists certain environmental measures as exceptions to them.Footnote 119 Inclusion of two occasionally conflicting norms (trade liberalization and environmental protection) in GATT compelled the WTO Dispute Settlement Body (DSB) to look into the object of the GATT to determine which of these norms should prevail when they conflict.Footnote 120 For example, in the Shrimp-Turtle dispute,Footnote 121 certain governments challenged US-imposed embargos on the import of shrimp or shrimp products harvested in conditions that allegedly affected sea turtles, on the grounds that those conditions were not covered by the exceptions under Article XX(b) and (g) GATT.Footnote 122 The DSB interpreted Article XX GATT in purview of its primary objective, which was to protect the multilateral trading system, and concluded that the measures taken by the US under Article XX GATT operated as a trade restriction in violation of the WTO Agreement.Footnote 123 The delineation between the primary and secondary purposes of a multipurpose treaty further obscures the application of the Article 30 VCLT's subject-matter test to resolve treaty conflicts.

In respect of the chronology of adoption or accession of treaties, the lex posterior rule provided by the VCLT sometimes fails to offer a certain and adequate solution for normative conflict, and its opposite, the lex prior rule, may be considered as appropriate in certain instances of conflict.

IV. Treaty Conflicts Before International Courts

International courts and tribunals have a tendency to avoid and not resolve treaty conflicts, for which they have developed various techniquesFootnote 190 like reconciling conflicting norms,Footnote 191 declaring treaties as parallel instead of conflicting,Footnote 192 limiting their jurisdiction to only one of the treaties concerned,Footnote 193 or simply denying the existence of a treaty conflict.Footnote 194 Borgen, however, has rightly noted that these harmonizing effortsFootnote 195 may resolve apparent but not genuine conflicts.Footnote 196 The ECtHR has, nonetheless, resolved the problem of genuine treaty conflict in Soering and Matthews.Footnote 197

In Soering,Footnote 198 the US, pursuant to the UK-US extradition treaty,Footnote 199 sought the extradition of Soering, a German citizen detained in a UK prison, for offences carrying the death penalty. In accordance with the Article 4 of the Treaty, the UK had secured a waiver from the US of the death penalty if extradition was approved. Unsatisfied with the US assurances on this matter, Soering unsuccessfully petitioned the English Courts for judicial review, which led to his application to the ECtHR that extradition would lead to a serious likelihood of his execution in the US. In addition to the death penalty itself, he also claimed that the circumstances surrounding this punishment, like the likelihood of an extended period on death row, would constitute inhuman or degrading punishment contrary to ECHR Article 3,Footnote 200 which binds the UK but not the US.

The EU Commission argued as established law that ECHR Article 3 is implicated when there are serious reasons to believe that a person's extradition would lead to the receiving state treating the person in a manner contrary to Article 3.Footnote 201 The UK characterized the EU Commission's approach as an interference with international treaty rights, leading to a conflict with the norms of international judicial process.Footnote 202 As such interference would involve adjudication on the affairs of states not party to the ECHR, the UK further argued that this would require the Court to examine alien systems of law and conditions in foreign states, cause a serious risk of harm in the ECHR party state that is obliged to harbour the protected person, and leave criminals at large and unpunished.

While the Court observed that the ECHR neither governs the actions of non-party states nor requires contracting states to impose ECHR standards on other states,Footnote 203 it acknowledged the incompatibility of the obligations acquired by the UK under the extradition treaty and the ECHR.Footnote 204 Although acknowledging that state parties to the ECHR are not responsible “under Article 3 for all and any foreseeable consequences of extradition suffered outside their jurisdiction”,Footnote 205 the Court considered the “special character” and “object and purpose” of the ECHR as “an instrument for the protection of individual human beings [to] require that its provisions be interpreted and applied so as to apply its safeguards practical[ly] and effective[ly]”.Footnote 206 It noted that Article 3 contains an absolute prohibition on torture and inhuman punishment, and that this “enshrines one of the fundamental values of the democratic societies making up the Council of Europe”.Footnote 207 The Court also observed that other international instruments such as the 1966 International Covenant on Civil and Political Rights and the 1969 American Convention on Human Rights enshrine this same value, which is an internationally accepted standard.Footnote 208

The Court observed that the absence of a specific obligation in the ECHR that a party state refrain from extraditing fugitives when there are substantial grounds for believing they would be subjected to conduct in violation of the treatyFootnote 209 does not mean that such an obligation is not already inherent in Article 3. The Court unflinchingly declared that:

The Soering Court declared that the ECHR obligation would prevail at the expense of another obligation acquired by a party state on behalf of a third state. It could not have been clearer about prioritizing the interest of the individual, as embodied in the ECHR, over the obligation embodied by the extradition treaty, on the basis of a value-based hierarchy between the two norms.Footnote 211 ECHR Article 3, according to the Court, contains a non-refoulement obligation that prohibits the UK from transferring a person to the US if a real risk of that person being subjected to inhuman treatment in the US was established.Footnote 212 On the other hand, however, was the UK/US extradition treaty that required the UK to extradite Soering, without exception. Both treaty norms provided obligations for which there were corresponding rights, and the normative conflict between the ECHR and the UK/US extradition treaty could only be resolved by establishing a hierarchy between the conflicting treaty norms in terms of their represented values and protected interests.Footnote 213 Instead of leaving the matter for the UK to decide, possibly based on political considerations, the Court determined an objective hierarchy between the conflicting treaty norms.

By prioritizing the non-refoulement obligation over the extradition obligation, the Court neither pronounced the non-refoulement obligation as jus cogens nor declared the UK/US extradition treaty void.Footnote 214 On the contrary, it created an exception based on value-oriented reasoning. The Court did not deny the beneficial interest of extradition in preventing fugitive offenders from evading justice,Footnote 215 but instead declared that the non-refoulement norm represented an interest that was superior to it. This non-refoulement interest may indeed attain the status of jus cogens,Footnote 216 and only then can it declare a conflicting treaty void.Footnote 217 And in that case, it will be unnecessary to have a convention like the ECHR to establish the right of the individual. By creating this exception, the Court has nonetheless contributed to this value-internalization process and set a precedent.Footnote 218

In Matthews, the Court dealt with both the ECHR, which qualified the European Parliament (EP) as a legislature in respect of which states had to organize free elections, and a treaty concluded among the EU members that prohibited the UK from extending the franchise for the EP to Gibraltar.Footnote 219 The context was the election in Gibraltar for the EP. The Court found the UK responsible for violating the ECHR, irrespective of its other treaty obligations. The applicant alleged a violation of her right to free election under ECHR Article 3 Protocol 1. While the Court did not find this right absolute, it observed that the conditions imposed on it must neither impair the very essence of the right to vote nor render it ineffective and must be in pursuit of a legitimate aim; as well, the means employed must not be disproportionate.Footnote 220 In addition to a violation of Article 3 of Protocol 1 to the ECHR,Footnote 221 the applicant also alleged discrimination in violation of ECHR Article 14.Footnote 222 The Court did not find it necessary to consider the latter as it had already found a violation of the former.Footnote 223

Unlike in Soering, the Matthews Court did not explicitly resort to value-oriented analysis. It can be argued, however, that such an orientation played a role in the Court's decision, where, for example, it stated that the ECHR guarantees practical and effective—as opposed to theoretical—rights, and found that the UK had failed to secure the applicant's right to free elections.Footnote 224 It nonetheless prioritized the individual's interests over the state's interest as embodied in the EC treaty (now TFEU) regime. In both Soering and Matthews, the Court prioritized the individual's interest over more general obligations, and did not allow states to settle the matter based on political preferences.Footnote 225 The Court instead determined a hierarchy among the conflicting interests, just like the ECJ did in Schmidberger.Footnote 226

WTO agreements may also have implications for obligations, such as human rights or environmental protection, that fall either insideFootnote 227 or outside the WTO regime.Footnote 228 The Appellate Body (AB) has adopted a case-by-case balancing between trade norms and conflicting norms.Footnote 229 In so balancing, the AB in Korea-Beef Footnote 230 and EC-Asbestos Footnote 231, but not in Shrimp-Turtle, adopted a value-oriented approach to determine a hierarchy between trade and the protection of human health.

In Korea-Beef, the AB was required to decide whether measures taken by Korea in purview of GATT Article XX to protect human health fulfilled the sine qua non of “necessary” as stipulated by the Article XX(d).Footnote 232 The AB stated:

While the AB found that Korea had not met its Article XX(d) burden of demonstrating that alternative WTO-consistent measures were not “reasonably available” to it,Footnote 234 the above-quoted dicta strongly indicates what the AB's decision would have been if Korea had in fact met its burden.

In EC-Asbestos, the AB, referring to Korea-Beef, noted:

This time, the AB found that the impugned European Community's measure was indeed “necessary” to protect human health.

While questions relating to treaty conflicts may inevitably become necessary for the resolution of a matter, the jurisdiction of courts and tribunals over treaty conflicts is complicated. It might be considered limited to the application of a specific treaty or set of treaties,Footnote 236 and tribunals may have an exclusive jurisdiction over disputes arising from a particular treaty.Footnote 237 Likewise, the jurisdiction of dispute-settlement tribunals may be limited by the treaty itself to issues arising under it.Footnote 238 In this manner, then, treaties may be treated as self-contained regimes.Footnote 239 It cannot be stipulated, however, that such regimes are entirely self-contained.

The WTO is perhaps the most prominent example of a self-contained regime.Footnote 240Shrimp-Turtle, Reformulated Gasoline, EC-Asbestos,Footnote 241 and Korea-Beef,Footnote 242 however, reveal that the jurisdiction of the WTO Dispute Settlement Understanding (DSU) is not limited to matters pertaining to trade alone. In Shrimp-Turtle, the DSB Panel in fact looked into whether any other treaty obligated the US to take the measures that allegedly violated the WTO Agreement.Footnote 243 In this regard, the ILC Report has rightly distinguished between the jurisdiction of a court or tribunal and the scope of applicable law in the interpretation and application of a treaty; for example, while the jurisdiction of the DSU is limited to the application of the WTO Agreement, there is no explicit provision limiting the applicable law to its normative framework.Footnote 244

A tribunal may, on the other hand, have extensive jurisdiction to entertain all matters that relate to or affect the subject matter of a treaty. For example, Article 25(1) of the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (ICSID Convention)Footnote 245 provides that the jurisdiction of the International Centre for Settlement of Investment Disputes (ICSID) shall extend to any legal dispute arising directly out of an investment. States must consent to ICSID jurisdiction, however, by including, for example, a general dispute-resolution clause in their bilateral investment treaty (BIT).Footnote 246 Once a state's consent is established, any state measure in respect of human rights or the environment that offsets the legitimate expectations of an investor will bring the dispute within ICSID's jurisdiction. When those measures are based on treaties other than the BIT, tribunals would indeed be empowered to exercise jurisdiction to entertain arguments based on other treaty regimes.Footnote 247 Though the ICSID Convention allows disputing parties to choose the law applicable to their dispute, the fall-back provision for the application of international law in the case of disagreement between parties would effectively bring the application of other treaty regimes to an investment dispute.Footnote 248 Furthermore, even if the parties opt to consider the investment-treaty regime as a self-contained regime, tribunals may still apply the enabling rules of international law contained in other regimes when it is unable to find guidance on a particular issue in the investment treaty itself.Footnote 249 The ILC Report remarks on the scenario of jurisdiction of courts and tribunals as follows:

According to Schwarzenberger, when a court or tribunal has jurisdiction to deal with only one of the conflicting treaties, it would always be entitled to claim jurisdiction over matters that are incidental to its decision on the main issue.Footnote 251 Interestingly, and also correctly, Schwarzenberger suggests that a court or tribunal is required to exercise jurisdiction over conflicting treaties in order to properly discharge its duty of determining their accumulative legal effects.Footnote 252