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Let's say a State has two obligation, on one hand, it must return a person to country of origin under treaty law, on the other hand, the person seeks asylum and thus, under 1951 convention principle of "non-refoulement" applies.

  1. does it matter that one of those obligations initiated earlier than the other one?

  2. Is there a hierarchy among humanitarian obligation and other obligations of a State?

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  • This is exactly why we have courts; to decide between conflicting obligations.
    – Dale M
    Mar 10, 2016 at 11:24

2 Answers 2

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There are three main ways conflicts between legal effects (obligations, institutional facts, etc.) are derogated.

Lex superior - the effect originating from the highest priority legal source (e.g. human rights charters) derogates.

Lex posterior - the effect originating from the most recently enacted legislation derogates.

Lex specialis - the most specific effect derogates (e.g. any EU product can be sold in any EU country. Italy requires only pasta made from wheat can be sold as pasta. Germany makes pasta made from some other product. Italy's law is more specific and therefore German-labelled pasta which does not constitute pasta to Italy's legal system cannot be sold in Italy).

If a more specialised effect somehow contradicts an effect from a higher source, then one principle must be determined as taking precedent over another. It depends on the legal system which is which. I don't know any legal system where an effect from superior source has been derogated by an inferior source. Human Rights law should always take precedent, so should a constitution, under the lex superior principle.

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    Also, usually courts make every effort to interpret the purportedly conflicting legal authorities in a manner that eliminates the direct conflict, even if it is not the most natural interpretation of the legal authorities in a vacuum.
    – ohwilleke
    Feb 15, 2022 at 18:03
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Yes, there's a recognized order of obligations. In particular, states cannot bypass such pesky things as Universal Human Rights by signing a conflicting treaty.

The specific example is a case where the asylum procedure exists to protect such a universal human right, and therefore if it applies it trumps the extradition treaty.

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  • I would agree that this is what is done in 'civilized developed countries". I would not agree that all states honor it or reach the same conclusion. I would also disagree that "Universal Human Rights", as a general concept, are recognized in international law as a basis for legal relief. Generally, the appeal must be more specific (such as being a signatory to an asylum treaty).
    – ohwilleke
    Feb 15, 2022 at 18:02
  • @ohwilleke: I suppose with "appeal" you mean an appeal by or on behalf of a natural person? Large parts of international law, including many treaties, only apply to states. You're entirely right that those parts are not a basis for relief in individual cases.
    – MSalters
    Feb 16, 2022 at 8:31
  • I can see how my choice of the word "appeal" could be confusing in this context. My intent was to say that the legal authority relied upon by someone seeking to invoke international law to get some outcome must be more specific. I did not intend to use the word in a procedural sense in that sentence.
    – ohwilleke
    Feb 16, 2022 at 22:29

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