International Treaty Law - Conflicts

International Treaty Law - Conflicts

• Conflicts in international treaty law refer to perceived inconsistencies or contradictions between two or more international treaties.
• These conflicts can arise when states are party to multiple treaties addressing the same or related issues, with incompatible provisions.
• Conflicts can take various forms:
  • Normative conflicts: clashing obligations, standards, or principles between treaties.
  • Temporal conflicts: differing timelines or effective dates of treaty provisions.
  • Substantive conflicts: differences in the content or substance of treaty obligations.
  • Procedural conflicts: differing mechanisms or procedures for dispute resolution, implementation, or other processes.

General Aspects

• Understanding conflicts is crucial for maintaining coherence and effectiveness in the international legal system.
• Various legal principles, such as lex specialis, lex posterior, and good faith interpretation, are used to resolve these conflicts and establish a hierarchy of norms.
• States may also resort to dispute resolution mechanisms.

Categories of Treaty Conflicts

• Commentators categorize conflicts into three broad structural groupings:
  • Conflicts between bilateral treaties.
    • Example: State A and B are parties to Treaty I; State A and C are parties to Treaty II. A's obligations to C might conflict with A's obligations to B.
  • Conflicts due to increasing membership
    • Diagrammed as AB:ABCD. (Bilateral treaty between A and B conflicts with a multilateral treaty involving A, B, C, and D)
  • Conflicts due to decreasing membership
    • Diagrammed as ABCD:AB (Multilateral treaty involving A, B, C, D conflicts with a bilateral treaty between A and B).

Solutions

• The diversity of treaty conflicts has led to various potential solutions, including:
  • Drafting techniques: thoughtful treaty drafting to prevent future conflicts.
  • Application of general principles of law
  • Interpretation of conflicting provisions
  • Rules in the Vienna Convention on the Law of Treaties (VCLT)

Points

• Conflicts can be resolved through agreement on interpretation, modification, or termination of earlier treaties. (often through abrogations)
• Parties to a newer treaty may terminate an earlier one via agreement.

Conflicts between Treaty Norms and Customary Norms

• Treaty norms are established by formal written agreements between States.
• Customary norms arise from States' consistent practice and a belief that this practice is legally required (opinio juris).
• Conflicts can arise when treaty obligations are perceived as conflicting with pre-existing customary international law.

Conflicts between Treaty Norms

• Two main theories address contradictions between treaty norms:
  • Objective theory: a later conflicting treaty is void, as a State cannot unilaterally annul another State's rights. Pacta sunt servanda (agreements must be kept) governs.
  • Subjective theory: both treaties are valid, and the bound State has discretion to choose which to apply. The State would bear responsibility for breaches and may be liable for damages.

Solution by Express Conventional Norms

• Treaties can expressly establish provisions regarding conflicts with other treaties, either through primacy or subordination clauses.
• Examples of primacy can be found in the UN Charter (Art 103).
• Subordination clauses might be found in similar international agreements or covenants.

Solution in Case of Silence of the Treaty

• When the treaty is silent on conflicts, the VCLT's residual rules apply, including:
  • Pacta sunt servanda
  • Pacta tertiis nec nocent nec prosunt
  • Lex posterior derogat legi priori

Pacta sunt servanda

• The cornerstone principle of international law emphasizing the importance of adhering to treaty commitments in good faith when conflicts arise.

Pacta tertiis nec nocent nec prosunt

• Agreements do not affect non-party States. Treaties create rights and obligations for the parties involved exclusively.

Lex posterior derogat legi priori

• A later treaty overrides an earlier one if they are conflicting. The hierarchy is determined by the sequence of enactment/conclusion.

Application to Conflict Resolution

• States should pursue solutions that uphold treaty obligations in good faith, and consider if those obligations affect parties not within the treaties in question, using principles like lex posterior