Conflict: International Treaty Law PDF

Conflict International Treaty Law Content General Aspects Conflicts between Treaty Norm and Customary Norm Conflicts between Treaty Norms Solution by express conventional norms Solution in case of silence of the treaty  General aspects In the context of international treaty...

Conflict International Treaty Law Content General Aspects Conflicts between Treaty Norm and Customary Norm Conflicts between Treaty Norms Solution by express conventional norms Solution in case of silence of the treaty  General aspects In the context of international treaty law, the term "conflict" typically refers to a situation where there is a perceived inconsistency or contradiction between the provisions of two or more international treaties. This conflict may arise when states are parties to multiple treaties that address the same or related issues, and the provisions of these treaties appear to be incompatible or mutually exclusive.  Forms of conflict Conflicts in international treaty law can take various forms: Normative Conflict Temporal Conflict Substantive Conflict Procedural Conflict Normative conflicts occur when the obligations or requirements set out in one treaty seem to clash with those in another. This can involve contradictory rules, standards, or principles. Temporal conflicts arise when there is a difference in the timeframes or effective dates of the provisions in two treaties. The later-in-time rule is often applied to determine which treaty prevails when there is a temporal conflict. Substantive conflicts involve differences in the content or substance of the obligations imposed by different treaties. States may find it challenging to comply with both sets of obligations simultaneously. Procedural conflicts relate to differences in the mechanisms or procedures established by treaties for dispute resolution, implementation, or other processes.  General aspects Conflicts in international treaty law is crucial for maintaining the coherence and effectiveness of the international legal system. Various principles and rules, such as the principles of lex specialis, lex posterior, and good faith interpretation, are applied to resolve these conflicts and determine the hierarchy of norms when there is inconsistency between treaties. States may also resort to dispute resolution mechanisms to resolve conflicts and clarify their treaty obligations.  Categories of treaty conflicts Commentators have focused on three broad structural categories of treaty conflicts: 1. conflicts between bilateral treaties; 2. the problem of increasing membership; 3. the problem of decreasing membership. Conflicts between bilateral treaties occur when States A and B are parties to Treaty I, States A and C are parties to Treaty II, and A's obligations to C are incompatible with A's obligations to B. This can be diagrammed as AB:AC. Two examples of conflicts between bilateral and multilateral treaties are those of increasing membership (AB:ABCD) and decreasing membership (ABCD:AB)  Solutions The variety of treaty conflicts has led to a number of possible solutions, including: techniques of drafting treaties the application of general principles of law Interpretation ultimately, codified rules in the VCLT.  Drafting techniques The best solution to treaty conflicts is to prevent potential problems from occurring in the first place. Thoughtful drafting of treaty provisions is probably the most effective way to avoid or resolve potential treaty conflicts.  Points A conflict will disappear if all the contracting States to the treaty agree on an interpretation which ensures compatibility or agree on a modification of the treaty so as to ensure compatibility. The parties to a newer treaty may also simply terminate an earlier treaty when concluding the later one (article 59 VCLT). This may occur through abrogation clauses. Conflicts between treaty norms and customary norms Treaty norms - are rules and obligations agreed upon by states in a formal written agreement known as a treaty. Treaties are binding on the parties that have consented to be bound by them. Treaties can cover a wide range of issues and may involve multilateral or bilateral agreements. Customary norms - arises from the general and consistent practice of states followed by a belief that such practice is legally required (opinio juris). Customary norms are unwritten rules that are considered binding on all states, irrespective of whether they are parties to a specific treaty. Conflicts between treaty norms and customary norms The issue of conflicts between treaty norms or between treaty norms and customary norms is a complicated matter. Conflicts between treaty norms and customary norms – can arise in international law when the obligations established by a treaty are perceived to be in conflict with pre-existing customary international law. In the event of a conflict between a treaty norm and a customary norm, there is no universally agreed-upon hierarchy between the two in general international law. Conflicts between treaty norms and customary norms When there is a conflict between a norm in a treaty and a norm in general customary international law, the lex specialis rule will normally apply. It must be presumed that the parties intended that the rules specifically drafted by them should enjoy precedence. There are many examples of the lex specialis principle operating as against general customary norms. Thus, there are many fishing agreements for the high seas which limit inter partes the freedom of the high seas; rules under human rights conventions alter the generally applicable régime of diplomatic protection by granting personal remedies; environmental conventions introduce a series of duties which are not applicable under customary law; Conflicts between treaty norms There are two main theories on the effect of contradiction between treaty norms: Objective theory - based on the principle of legality Subjective theory - hinges upon the will of the parties  Objective theory For the objective theory, there is voidness of the later obligation when it contradicts an earlier one. The rationale behind this regulation is that a party cannot ‘annul’ the rights of a treaty partner by the unilateral act of concluding another treaty with another State. It must honour its existing obligations under the first treaty, which thus prevail over those of the later one. Pacta sunt servanda limits the capacity of parties to conclude later conflicting treaties.  Subjective theory The subjective theory holds that both agreements are equally valid and that the State bound by incompatible obligations will have to apply the one and sacrifice the other, at its discretionary choice. Concomitantly, it will have to bear international responsibility for the obligation breached, notably to pay damages. Solution of Conflicts between treaty norms Conflicts between treaty norms can be solved either by inserting express provisions into a treaty or by applying the residual rules of the VCLT. Solution by express conventional norms Solution in case of silence of the treaty Solution by express conventional norms A treaty may make express provision for conflicts with other treaty norms, either by stipulating its primacy or by admitting its subordination. Examples of express provision of primacy can be found in Article 103 of the UN Charter. Which states that: in the event of a conflict between the obligations of the members of the United Nations under the Charter and their obligations under any other international agreement, their obligations under the Charter will prevail. Examples of subordination clauses can be found in article 21 of the League of Nations Covenant which stipulates that the League may take any action or recommend to its Members suitable measures (Like Monroe Doctrine) )to be taken in order to safeguard international peace and security. Or article 30 (2) of VCLT.  Solution in case of silence of the treaty In this situation, the residual rules of the VCLT apply. They constitute a complex balance between pacta sunt servanda pacta tertiis nec nocent nec prosunt lex posterior derogat legi priori. There are two main hypotheses. In the case of successive treaties with identical parties the lex posterior principle prevails. In the case of successive treaties where the parties are not identical the pacta tertiis rule limits the reach of possible solutions.  Solution in case of silence of the treaty In this situation, the residual rules of the VCLT apply. They constitute a complex balance between pacta sunt servanda pacta tertiis nec nocent nec prosunt lex posterior derogat legi priori. There are two main hypotheses. In the case of successive treaties with identical parties the lex posterior principle prevails. In the case of successive treaties where the parties are not identical the pacta tertiis rule limits the reach of possible solutions.  Pacta sunt servanda "Pacta sunt servanda" translates to "agreements must be kept" in English. It is a foundational principle in international law emphasizing the fundamental obligation of states to uphold and perform the treaties to which they are parties. When conflicts arise between treaty norms, this principle underscores the importance of honoring treaty obligations. States are generally expected to fulfill their treaty commitments in good faith, and the principle of pacta sunt servanda serves as a presumption in favor of the observance of treaty obligations. pacta tertiis nec nocent nec prosunt This Latin phrase translates to "agreements do not harm or benefit third parties." It reflects the idea that treaties create rights and obligations exclusively for the parties involved and do not directly affect the rights or obligations of non-party states. In the context of conflicts between treaty norms, this principle emphasizes that the rights and duties arising from a treaty generally apply only to the states that are parties to the treaty. If there is a conflict between two treaties and a third party is not a party to either of them, the principle of pacta tertiis suggests that the rights and obligations of the conflicting treaties do not affect the third party. lex posterior derogat legi priori "Lex posterior derogat legi priori" means "a later law derogates (overrides) an earlier law." This principle acknowledges that when there is a conflict between two laws or treaties, the one enacted or concluded later in time prevails. In the context of conflicts between treaty norms, this principle helps determine the hierarchy between conflicting treaties. If a state is a party to two treaties, and there is a conflict between their provisions, the later treaty takes precedence over the earlier one. This ensures that the most recent expression of the parties' intentions prevails. Application to Conflict Resolution Pacta sunt servanda - emphasizes the sanctity of treaty obligations. When conflicts arise, states are expected to seek solutions that uphold the spirit and intent of the treaties involved while fulfilling their commitments in good faith. Pacta tertiis nec nocent nec prosunt - helps limit the impact of treaties to the parties involved. In the resolution of conflicts, states may consider whether the conflicting treaties directly affect third parties and, if not, focus on finding a solution that respects the rights and duties of the parties to the conflicting treaties. Lex posterior derogat legi priori used - when resolving conflicts between treaties, the principle of lex posterior provides a clear rule for determining hierarchy. States can rely on the order of conclusion of the treaties to establish which one prevails when there is a conflict.