JOURNAL ARTICLE
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Coordination of Different Principles and Values in International Law
German Yearbook of International Law, Vol. 61 (2018), Iss. 1 : pp. 209–250
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Riccardo Pisillo Mazzeschi, Professor of International Law, University of Siena, Department of International and Political Sciences.
Abstract
The theme of coordination between different principles and values is becoming central to contemporary international law. This is because the latter has become a broad and complex legal system and is going through a phase of profound transformation. This also implies a paradigmatic and ideological change of the international legal order, which tends to shift from a law of rules to a law of values. In this transition phase, conflicts occur especially between the principles of ‘old’ international law and the principles of ‘new’ international law. In this paper it is claimed that, in international law, three different methods are used to try to resolve the antinomies between conflicting principles: a) a ‘traditional positivist’ method; b) a ‘modern positivist’ method; c) a ‘value-based’ method. These three methods are strictly linked to three different conceptions on the sources of general international law and on the means for identification of that law. This article examines separately the three methods and the practical results to which they arrive, using as a main example the conflict between principles on international immunities and principles on fundamental human rights. The conclusion is that the interpreter should today avoid the ‘traditional positivist’ method, because it is now unsuitable for the reality of contemporary international law. Instead, he should use both the ‘modern positivist’ method and the ‘value-based’ method, coordinating them among themselves.
Table of Contents
| Section Title | Page | Action | Price |
|---|---|---|---|
| Riccardo Pisillo Mazzeschi: Coordination of Different Principles and Values in International Law | 1 | ||
| Abstract | 1 | ||
| I. Introduction | 1 | ||
| II. Resolving Conflicts of Norms in the General Theory of Law | 3 | ||
| A. The General Question of Antinomies Between Norms | 4 | ||
| B. The Specific Question of Antinomies Between Principles | 4 | ||
| III. Dealing With Conflicts of Norms in International Law | 6 | ||
| A. Is There a Contrast Between ‘Old’ and ‘New’ International Law? | 6 | ||
| B. Examples of Conflict Between Principles | 1 | ||
| C. Three Methods to Coordinate Conflicting Principles | 1 | ||
| IV. The Traditional Positivist Method | 1 | ||
| A. Views That Tend to Deny or Avoid Conflicts | 1 | ||
| B. Conservative Views on International Sources | 1 | ||
| 1. Traditional Concept of Custom | 1 | ||
| 2. Traditional Concept of General Principles of Law Recognised In Foro Domestico | 2 | ||
| 3. Traditional Concept of General Principles of International Law | 2 | ||
| 4. Sceptical Views About Jus Cogens | 2 | ||
| V. The Modern Positivist Method | 2 | ||
| A. Modern Concept of Custom | 2 | ||
| B. Modern Concept of General Principles of Law Recognised In Foro Domestico | 2 | ||
| C. Jus Cogens as a Hierarchical Criterion | 2 | ||
| D. Results of the Modern Positivist Method | 3 | ||
| VI. The Value-Based Method | 3 | ||
| A. The Growing Role of General Principles of International Law | 3 | ||
| B. Balancing Conflicting Principles or Values | 3 | ||
| C. Results of the Value-Based Method | 3 | ||
| VII. Conclusion | 4 |