Norm Conflict, Fragmentation, and the European Court of Human Rights

Abstract

In Al-Jedda v. United Kingdom, the European Court of Human Rights addressed the petition of a person detained by U.K. occupation forces in Iraq pursuant to United Nations Security Council authorization. One issue before the court in Al-Jedda—whether the petitioner’s rights against the U.K. government under the Convention for the Protection of Human Rights and Fundamental Freedoms might disapply the Security Council authorization—illustrates the problem of norm conflict between intergovernmental regimes. The Al-Jedda court avoided directly pitting the differing norms at issue (Security Council resolutions versus European human rights treaty provisions), but in doing so left open such a conflict for where one such norm explicitly requires violation of the other. When this question arises, the court should not hold that the applicability of European treaty norms disapplies Security Council resolutions or other United Nations acts, because so holding would further fragment the international system and leave states in positions where they will be bound to violate at least some of their international obligations.