The development of self-contained regimes as an obstacle to UN global governance: Carmen Draghici
While the absence of a coherent normative and institutional hierarchy has characterized the international community of states at all times, until recently the potential conflicts arising from the fragmentation of international law were mostly relegated to the realm of academic debate.1 Where they did arise, they typically involved divergent (substantial/procedural) solutions provided for by regional or sectoral agreements on the same matter.2 The United Nations (UN) Charter norms remained immune from any balancing against particular norms, by virtue of the hierarchical relationship established by Article 103 and of the general acceptance that they codify the international public order. The practical consequences of the fragmentation, and in particular the regionalization, of international law are becoming, nonetheless, appreciable in the light of a series of recent legal developments that redefine the relationship between the UN and the European Union (EU). Such developments were driven by the discrepancy between UN sanctions targeting individuals suspected of terrorist links and the concerns of EU institutions over the infringement of fundamental human rights. The Kadi ruling of the
well as the subsequent Council Regulation 1286/2009 of 22 December 2009, have challenged the decades-long assumption of the pre-eminence of UN obligations (in particular under Security Council Chapter VII resolutions) over any other international agreements. Starting from these momentous developments, this chapter seeks to address major quandaries in current international law: what relevance and authority does UN law retain in relation to self-contained regimes? Is UN law still conceived as hierarchically superior in case of contrasting obligations, or do the ordinary rules on conflict of norms (i.e. norms of equivalent status) apply?