Article 103 of the UN Charter : strict hierarchy as a last resort

Abstract

Due to the growing proliferation and specialisation of international law and its actors, on the one hand, and the rising activities of the UN Security Council, on the other, the risk for possible conflicts of UN law with other law increased strongly. This prompted debates on a hierarchical nature of the Charter and in particular it’s Article 103 which deals with conflicts between UN law and other international law. This thesis—after introducing the theoretical background of the concept of hierarchy and linking Article 103 to the discussion on hierarchy in international law in the light of the broader discourse on pluralism versus constitutionalism—analyzes Article 103 on the basis of a pragmatic interpretative approach. In light of various judgments that dealt with possible conflicts between UN law and other law techniques will be discussed that enable Courts that have different concepts of the international legal order to avoid possible conflicts. This thesis argues that the real value of Article 103 is the one of an interpretative guideline that unfolds supremacy of UN law by dialogue and accommodation rather than by hierarchy in a strict sense. Article 103 should be applied as a hierarchical rule—in the strict sense—only as a ‘last resort’ once all possible venues of harmonious interpretation are exhausted. By such an approach Article 103 is more likely to maintain the coherence and the unity of the international legal system under the umbrella of the UN Charter However, when it comes to the limits of harmonious interpretation, in cases of so-called genuine conflicts, UN law should be granted hierarchical supremacy on the international level; international and domestic Courts should exercise judicial restraint—but only under similar conditions to the ones that were formulated in the Solange approach by the German BVerfG or the Bosphorus approach by the ECtHR.