Norm Conflict in International Law: Whither Human Rights?
![handle is hein.journals/djcil20 and id is 71 raw text is: NORM CONFLICT IN INTERNATIONAL LAW:
WHITHER HUMAN RIGHTS?
MARKO MILANOVIt*
INTRODUCTION
Two incontestable features of modern international law - the
multiplicity of its law-making processes and the ever-increasing variety of
the subject-matter that it seeks to regulate - have one invariable
consequence: the. increasing likelihood of norm conflict, part of the
phenomenon of fragmentation of international law. Much work has been
devoted to this topic, and, as is well known, it has already been the object
of a comprehensive study by the International Law Commission (ILC). 1
Unlike much of the theoretical work on the subject, this article
attempts to deal with the practicalities of norm conflict. Like the ILC
Study, it will try to further develop the toolbox that judges and lawyers
have at their disposal when dealing with cases involving a collision of
norms.2 It will do so by focusing on situations in which one of the
conflicting rules is a rule of human rights law, and, more specifically, on
those norm conflicts in which some other international rule, for instance a
UN Security Council resolution, attempts to prevail over or is at the very
least equal to a human rights norm. Such cases of norm conflict are
becoming more and more frequent and deal with matters of great political
importance, such as the targeted sanctions against or the preventative
detention of suspected terrorists.
There are several other reasons for this emphasis on human rights.
First, human rights norms operate not only between states, but also between
Copyright © 2009 by Marko Milanovid.
* LL.B (Belgrade), LL.M (Michigan), PhD candidate (Cambridge); Associate, Belgrade Centre for
Human Rights, formerly law clerk to Judge Thomas Buergenthal, International Court of Justice. E-mail:
mm676@cam.ac.uk. I would like to thank Jean d'Aspremont, Vera Gowlland-Debbas, Conor
McCarthy, Francesco Messineo, Vladimir Pavlovi6, Tobias Thienel, Isabelle Van Damme and Michael
Wood, as well as all participants at the forum at the Third Biennial Conference of the European Society
of International Law, held in Heidelberg in September 2008, where this paper was first presented, for
their most helpful comments. All errors remain my own.
1. Int'l L. Comm'n [ILC], Fragmentation of International Law: Difficulties Arising from the
Diversification and Expansion of International Law, UN Doc. A/CN.4/L.682 (Apr. 13, 2006) (finalized
by Martti Koskenniemi) [hereinafter ILC Study].
2. See id. para. 20.](ViewImageLocal?handle=hein.journals/djcil20&div=5&collection=&method=preview&ext=.png&size=3)
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