Methods of Resolving Conflicts Between Treaties (Graduate Institute of International and Development Studies)

Despite the theoretical and practical importance of the question of conflict between treaties, little has been written on the subject. This monograph fills this gap by providing a detailed analysis of the main issues. The book is divided into three parts. The first deals with the definition of conflict, causes of conflict, and different types of conflict. The second part examines different sources of international law in order to identify rules of international law relating to the resolution of conflicts. The third part addresses the actual process of resolving conflicts between treaties. After describing different stages of treaty conflict-resolution, it discusses some special principles advanced for resolving conflicts between certain types of treaties, namely, those relating to the protection of human rights, those concerning dispute settlement, and treaties dealing with private law issues. Title Page Copyright Page Dedication Table of Contents INTRODUCTION PART ONE PRELIMINARY OBSERVATIONS CHAPTER ONE THE CONCEPT OF ‘CONFLICT’ I. Definition of Conflict II. Causes of Conflict 1. The Same Act Is Subject to Different Types of Norms 2. One Norm Requires an Act, While the Other Norm Requires or Permits a ‘Contrary’ Act 3. One Norm Prohibits a ‘Necessary Precondition’ of Another Norm 4. One Norm Prohibits a ‘Necessary Consequence’ of Another Norm III. Types of Conflict 1. ‘Partial’ and ‘Total’ Conflicts 2. ‘Bipartite’ and ‘Multipartite’ Conflicts 3. ‘Supervening’ and ‘Constant’ Conflicts IV. Schematic Representation of Conflicting Norms 1. Constituent Elements of the Diagrams 2. Diagrams Representing Conflicting Norms A. Identical subjects B. One subject is more general C. Overlapping Subjects D. Disjoint Subjects V. Summary CHAPTER TWO ASCERTAINING THE EXISTENCE OF CONFLICT: REAL AND FALSE CONFLICTS I. Interpretation of Norms 1. Interpretation as a Means of Ascertaining the Existence of a Conflict 2. Some Problems of the Interpretation of Norms A. Norms Having an Implied’ Meaning B. The Meaning of the Term ‘Right’ II. Reconciliation of Norms 1. The Concept of ‘Reconciliation’ 2. Some Instances of Reconcilable Norms A. Concurrent Permissive Norms Can Never Conflict B. Two Norms May Have ‘Canceling’ Effect without Being Conflicting C. One Norm May Relate to the ‘Manner’ in Which the Other Norm Must Be Performed III. Summary PART TWO RULES OF INTERNATIONAL LAW FOR RESOLVING CONFLICTS CHAPTER THREE CONVENTIONAL LAW I. The System of the Vienna Convention on the Law of Treaties 1. One Treaty Affects the ‘Existence’ of the Other Treaty A. Termination of the Earlier Treaty B. One Treaty Invalidates the Other Treaty 2. Both Treaties Are in Force A. Amendment of Treaties B. Modification of Treaties C. Successive Treaties Relating to the Same Subject-Matter (i) The Pre-Eminence of the Charter of the United Nations (ii) Conflict-Resolving Clauses (iii) Rules for Resolving Conflicts (a) The Later Treaty Includes All the Parties to the Earlier Treaty (b) The Later Treaty Does Not Include All the Parties to the Earlier Treaty (c) The Question of the Validity of the Later Treaty (iv) The Critiques of the Vienna Convention (a) It Does Not Address the Question of Conflicting Obligations towards Different States (b) Problem of Determining the ‘Later’ Treaty (c) It Does Not Take Account of the Position of Regional Treaties (d) It Does Not Take Account of Treaties Containing Obligations erga omnes (e) The Ambiguity of the Term Treaty’ in the Context of Article 30 II. Specific Treaty Clauses Aiming at Resolving Conflicts 1. Definition of Conflict-Resolving Clauses 2. Types of Conflict-Resolving Clauses A. Clauses Giving Priority to the Treaty in Which They Are Incorporated (i) Priority over Existing Treaties (ii) Priority over Future Treaties (iii) Priority over Both Existing and Future Treaties B. Clauses Giving Priority to Other Treaties (i) Priority of Existing Treaties (ii) Priority of Future Treaties (iii) Priority of Both Existing and Future Treaties 3. The Problem of Concurrence between Conflict-Resolving Clauses CHAPTER FOUR CUSTOMARY INTERNATIONAL LAW I. State Practice as Reflected in Decisions of National Courts and Governmental Documents 1. Priority of the Later Treaty over the Earlier One 2. Priority of the Special Treaty over the General One 3. The Hierarchy between Norms 4. Priority of the ‘Principal’ Treaty over the Treaty ‘Implementing’ It 5. Denunciation of Existing Treaties as Means of Avoiding Conflict 6. Priority of the ‘More Favorable Provision’ in the Field of the Protection of Human Rights 7. The Principle of ‘Legislative Intent’ 8. The Principle of ‘Maximum Effectiveness’ II. Treaty Practice of States 1. Conflict between Universal Treaties A. Universal Treaties Having the Same Scope (i) Priority of the Later Treaty (ii) Priority of the Earlier Treaty B. The Scope of One Treaty Is Special (i) The Special Treaty Is Later in Time (ii) The General Treaty Is Later in Time C. Universal Treaties Which Are Partially Overlapping in Scope (i) Priority of Earlier Treaties (ii) Priority of the Later Treaty 2. Conflict between Universal and Closed Treaties A. A Universal Treaty Follows a Closed Treaty (i) Priority of Earlier Closed Treaties (ii) Priority of the Universal Treaty B. Closed Treaties Which Are Later in Time: The Problem of inter se Agreements C. Priority of the ‘More Favorable’ Treaty (i) Protection of Human Rights (ii) Protection of the Environment (iii) Protection of Intellectual Property Rights (iv) Protection of Cultural Property D. Priority of the ‘More Effective’ Treaty (i) Treaties on the Recognition and Enforcement of Foreign Judgments and Arbitral Awards (ii) Treaties on Dispute Settlement (iii) Treaties on Judicial Cooperation 3. Conflict between Closed Treaties A. Conflict between Regional Treaties (i) Regional Treaties Having the Same Scope (ii) The Scope of One Treaty Is Special (iii) Regional Treaties Whose Scopes Partially Overlap B. Conflict between Regional and Bilateral /Sub-Regional Treaties (i) The Regional Treaty Is Later in Time (ii) Subsequent Bilateral / Sub-Regional Treaties: The Problem of inter se Agreements (iii) Priority of the ‘More Effective’ Treaty 4. Concluding Remarks Concerning Treaty Practice of States CHAPTER FIVE OTHER SOURCES OF INTERNATIONAL LAW I. General Principles of Law II. Decisions of International Tribunals 1. The Oscar Chinn Case 2. European Commission of the Danube Case 3. The Mavrommatis Palestine Concessions Case 4. The Electricity Company of Sofia and Bulgaria Case PART THREE THE PROCESS OF RESOLVING CONFLICTS CHAPTER SIX DIFFERENT STAGES OF CONFLICT RESOLUTION I. Ascertaining the Existence of a Conflict II. Searching for Applicable Conventional Rules III. Ascertaining the Intention of the Parties Not Specified in the Treaty 1. Intention Expressed in the Course of travaux préparatoires 2. Intention Expressed after the Adoption of the Treaty IV. Resolving Conflicts in the Absence of Any Indications on the Intention of the Parties V. Conclusions CHAPTER SEVEN SPECIAL RULES ADVANCED FOR RESOLVING CONFLICTS BETWEEN CERTAIN TYPES OF TREATIES I. The Principle of the ‘More Favorable’ Provision in the Field of Human Rights 1. The Scope of the Principle 2. Exceptions to the Principle A. Discrimination B. Interests of the Society 3. The Effect of an Express Provision Limiting or Not Recognizing a Specific Right Guaranteed under a Prior Instrument 4. The Impact of the Multiplicity of Control Organs 5. Implications of the Principle for States II. The Principle of Cumulative Application of Instruments on Dispute Settlement 1. Concurrent Instruments Relating to the Jurisdiction of the Same Body 2. Concurrent Instruments Relating to the Jurisdiction of Different Bodies A. The Existence of a Clause Regulating the Relationship between the Procedure Established by One Instrument and Other Procedures B. The Absence of a Treaty Clause Regulating the Relationship between Concurrent Procedures for Dispute Settlement III. The Principle of ‘Maximum Effectiveness’ in the Field of Private Law IV. The Principle of the Priority of Treaties Relating to ‘Special Matters’ CONCLUSIONS BIBLIOGRAPHY "Despite the theoretical and practical importance of the question of conflict between treaties, little has been written on the subject. This monograph fills this gap by providing a detailed analysis of the main issues. The book is divided into three parts. The first deals with the definition of conflict, causes of conflict, and different types of conflict. The second part examines different sources of international law in order to identify rules of international law relating to the resolution of conflicts. The third part addresses the actual process of resolving conflicts between treaties. After describing different stages of treaty conflict-resolution, it discusses some special principles advanced for resolving conflicts between certain types of treaties, namely, those relating to the protection of human rights, those concerning dispute settlement, and treaties dealing with private law issues." "This work will assist and appeal to both academics in the fields of international law and political science and professionals engaged in international negotiations and treaty-making."--BOOK JACKET