Concurrent State Obligations

Abstract

If and when a State is faced with an international obligation to extradite an individual, but simultaneously it is constitutionally precluded from extraditing the individual owing to human rights concerns or constitutionally-entrenched provisions, what should the State do? A solution can be provided by a State’s ordinary legislation or by the State’s Constitution itself. Where domestic law remains silent on this dilemma international law should prevail to the detriment of a constitutionally-entrenched domestic provision, especially if the international law being invoked is of a customary nature, unless this would entail a breach of a jus cogens norm. What should a State do if faced with two international obligations emanating from norms of equal hierarchical status, or of seemingly equal hierarchical status? In the case of a conflict between two international norms of equal hierarchical status, the usual rules governing conflict between international norms may lead to the priority of the international norm that corresponds to the fundamental right. Here no question of supremacy arises. When the fundamental right in question is a rule of jus cogens, at the international level, the former would trump the latter and the State in question would be free and, indeed, compelled to prioritize the fundamental right. In this situation, again, no issue of supremacy arises. However, when the conflict of norms exists between an internationally protected human right, not rising to the level of jus cogens, and an obligation arising under a resolution of the UNSC, the latter would be superior over conflicting obligations.