Conflict Of Rights In International Law

Conflict of rights is common in law, and it is the cause of many disputes inreality. Scholars of jurisprudence and civil law have discussed a lot about this issue,and the research achievements are abundant. But the importance of this issue has notbeen recognized in international law as such. Except for several discussions on somespecific conflict of rights, there is no systematic research on this issue ininternational law as far as I could find. This dissertation is to introduce the conflictof rights as a general issue into the horizon of international legal research. Throughthe presentation of cases concerning the conflict of rights, the reality of the problemis proved. Feasible and effective solutions can be concluded based on empiricalanalysis and theory study. The research in this dissertation is still on an exploratorystage, and the outcome may not be ready for practical guidance, but the importanceof the topic should not be neglected.There are four chapters in this dissertation besides the introduction and theconclusion.In the introduction, with the summary of the Case Concerning the Temple ofPreah Vihear, the key issue is introduced as the conflict of rights in international law.Current theories and prospect relevant to this topic are examined, based on which thespecial point and the significance of this research are presented. The framework, thestructure arrangement and the research method are also introduced in this part.The first chapter elaborates the basic theory of the topic of this dissertation. Itdefines the conflict of rights in international law through the following process.Firstly, jurisprudence analysis is presented to figure out what “right” means. Thenthe elements of legal rights are concluded as subject of a right, some interest that are owned or may be requested by the subject and the recognition and protection of law.Then according to these elements, rights in international law are defined. As thetypical and special rights on this issue, sovereignty and human rights are elaborated.As follows, it discusses the theory about conflict of rights, and conflict of norms andinstitutions are also examined as relevant issues. Conflict of rights is real in sociallife, and in international law, it is defined as an inconsistent and disharmonious statebetween different subjects’ rights that are recognized in international law.The second chapter can be viewed as the factual basis of the dissertation.Different kinds of rights in conflict are selected out and analyzed to further prove thephenomenon. The cases represent the conflict between the rights of religiousfreedom, the conflict between the right of state immunity and fundamental humanrights, the conflict between the right of self-determination and the right of sovereignintegrity, the conflict between trading rights and environmental rights and theconflict between right to health and property rights. These cases suggest theuniversality of the conflict of rights in international law, and provide evidence for thesystematic analysis.Chapter Three discusses the causes of the conflict of rights in international law.The intrinsic features of rights come first. Every right recognized by internationallaw gets its own legitimacy for the self-causing attribute, and a vague boundarymakes it possible for a conflict between the legitimate rights. The other-involvingattribute and the exclusivity of rights drive the interference to an inconsistent extent.Facing the diversity and infinity of subjects’ demands, the resources our societycould provide are limited. And the systematic problems of international law itselfalso contribute to the generation of conflicts. The fragmentation of international lawcauses the different and inconsistent protection of a right among the differentdepartments of international law, and there is no explicit relationship between therules in general and the specific rules of international law. The conflict between rules and those between departments provide a condition for the emergence of conflict ofrights in international law. And the causes of fragmentation themselves lead to theconflict of rights directly or indirectly. For example, the missing of centrallegislature and judiciary, the influence of competing domestic interest groups onstates’ policy-making and the complexity and uncertainty of the sources ofinternational law are all playing a part. As a tendency, international law has grownfrom coexistence to cooperation and even to human rights oriented. Thistransformation booms many new departments, which enhance the protection of somerights, and in meanwhile, some traditionally highlighted rights are facing a challenge.With the emergence of jus cogens and obligations erga omnes, a hierarchy of valueshas gradually emerged in international law. When the protection of the rights can notmatch with the importance of the value they represent, conflict of rights may comeinto being. Furthermore, the proliferation of the international judiciary without duecoherence gives more uncertainty to the rights, which aggravates the conflict ofrights.The last chapter talks about how to solve this problem at the topic. Providedsome objective circumstances, conflict of rights in international law may not besolved completely and universally, but an individual resolution and a general reliefmay also help. Humanism and the idea of the harmonious world represent thedeveloping tendency and the highest value standard of the conflict resolution ininternational law. They must be borne in mind as the fundamental philosophy whensolving the conflict problems. The legislation approach alleviates the conflictlogically mainly in two ways: clarifying limits of rights and adjusting internationallegal regimes. The judicial approach aims at individual cases. The interpretation ofthe rules and the discretion of the judges are usually used in conflict solving injudicial process. Within these legal approaches, the measuring of values and interestsis always on board. In one hand, this measurement may recognize a hierarchy of rights, which can give priority to the right of higher grade in legislation and judicialprocess; in the other hand, when no hierarchy can be told, conflicts may also besolved by balancing interest and concerning for the underprivileged groups. Besidesthe legal approaches, negotiation and other non-legal methods may also be used. Toillustrate, negotiation can take the historical and current situation into consideration,and may lead to a result that all disputing parties are more willing to accept. Not tomention, some vital interests relating conflict can only be settled by the parties evenafter a judicial judgment. What’s more, technological developments can also becounted on to provide more resources or make more efficient use of the currentresources to ease up the tense that the limited resources brought in. However, takingthe complexity of conflicts and the inherent features of international law in account,which method is the best for the resolution of conflict of rights in international lawcan not be decided easily, and a case by case analysis may still be applied.