The Law And Politics Of International Regime Conflict University Press Scholarship Online

The international order is constituted by a plurality of international regimes - institutionalized arrangements in different issue areas that possess their own norms and procedures. The present book examines how conflict among regimes may arise and probes the role that international law can play in managing such conflict. Throughout the book, the example of trade in cultural products is used to illustrate the evolution of regime conflict and the potential for its management. Conflicts between the goals of 'free trade' and 'cultural diversity' have notably surfaced within the World Trade Organization (WTO) and the United Nations Educational, Scientific and Cultural Organization (UNESCO). As a result, there is a potential for conflict among WTO law, the UNESCO's Convention on the Protection and Promotion of the Diversity of Cultural Expressions, and human rights. The book posits that three dimensions are characteristic for regime conflict: First, regime conflict is a function of conflict among different social goals or values. Second, such goal conflicts are institutionalized through the interaction of a variety of political actors struggling for influence, often in intergovernmental organizations. Third, regime conflict may manifest itself in conflicts of legal rules. If a state acts in conformity with the rules of one regime, its conduct may trigger a violation of the rules of another regime. The author argues that, while international law cannot be construed as a fully integrated and unified system, it does provide a common language for different regimes to engage with each other. The shared discourse rules of international law enable a degree of coordination of the policies of different regimes, notably through techniques of interpretation and legal priority rules. International law contributes to the management of regime conflict by providing commonly accepted reasons for choosing among competing policy goals. Cover 1 The Law and Politics of International Regime Conflict 5 Copyright 6 Foreword 7 Acknowledgments 11 Contents 13 Decisions of International Courts and Tribunals 17 PART I. DIMENSIONS OF REGIME CONFLICT 23 1. Culture is One Thing and Varnish is Another 25 I. Introduction 25 II. Regulating Trade in Cultural Products 28 A. A definition of culture 28 B. International legal rules 30 III. Regime Conflict and the Fragmentation of International Law 37 IV. The Plan of this Book 41 2. Regime Conflict as Goal Conflict 43 I. Introduction 43 II. Toward a Heterarchy of Goal-specific Regimes 44 A. Anthropological approaches to legal plurality 44 B. Paradigms of international organization 49 1. The ‘Westphalian’ paradigm of coexistence 49 2. The hierarchical paradigm 53 3. The heterarchical paradigm 57 4. Regime conflict as legal pluralism 62 III. Goal Conflicts Arising from Trade in Cultural Products 64 A. Commodity flows: the case for free trade 69 1. Cultural products as marketable commodities 69 2. The challenge of market failures 70 3. Avoiding unnecessary social costs of cultural regulation 75 4. Trade in cultural products in the WTO system 79 B. Communication flows: the case for cultural identity politics 81 1. Identity construction as a starting point 82 2. The emancipatory cultural identity justification 84 3. The conservationist cultural identity justification 90 4. Development and the north–south divide 92 5. Cultural identity politics in the CDC 97 IV. Conclusion 98 3. Regime Conflict as Institutional Conflict and Power Struggle 101 I. Introduction 101 II. The Politics of Regime Formation and Regime Interaction 103 A. Theory of international regimes 103 B. Strategic action and communicative action in international relations 112 1. Strategic action and regime formation 115 2. Communicative action and regime operation 121 III. Regime Shifting and Regime Conflict: Trade and Culture 128 A. Regime shifting 128 1. Culture in the trade forum: 1920–1962 128 2. Towards the ‘New World Information and Communication Order’: 1958–1987 133 3. Back to the trade forum: 1986–1994 138 4. The countermovement in the UNESCO: 1995–2005 144 B. Regime overlap and regime conflict 154 1. From regime formation to regime interaction 155 2. Compatibility of principles 158 3. Compatibility of norms 160 4. Compatibility of rules 163 IV. Conclusion 164 4. Regime Conflict as Conflict among Legal Rules 166 I. Introduction 166 II. A Theory of Conflict of Rules 167 A. Definition of rule conflict 167 B. Conflict of rules in the practice of international adjudication 175 C. Categories of rules: Hohfeldian opposites and correlatives 181 III. Conflict Scenarios Relating to Trade in Cultural Products 183 A. Financial support of cultural industries 184 1. State aid for cultural goods under the CDC 184 2. State aid for cultural goods under the WTO law 188 3. State aid for cultural goods from a human rights perspective 194 B. Other conflict scenarios 198 IV. Conclusion 208 PART II. MANAGEMENT OF REGIME CONFLICT 211 5. The (Ir) relevance of International Law for Conflict Management 213 I. Introduction 213 II. Pluralist Challenges to the Relevance of International Law 214 A. Pluralist concepts of international law 214 B. Variations within legal pluralism 217 1. George Scelle’s communautés internationales particulières 217 2. Willem Riphagen’s notion of regime multiplicity 219 3. Gunther Teubner’s concept of competing rationality systems 221 4. Nico Krisch’s postnational pluralism 224 III. Legal Conflict Management within a Unitary International Legal Order 225 A. Unity of international law as a matter of degree 226 1. ‘Minimal systematicity’ versus ‘unity of the international legal order’ 226 2. Unity of the legal order as a validity condition for norms 229 3. Unity as a substantive principle of law 234 4. Unity as an epistemological postulate 235 B. Variations within the unitary approach 242 1. Joost Pauwelyn’s ‘Conflict of Norms in Public International Law’ 242 2. The perspective of the International Law Commission (ILC) 245 3. Pierre-Marie Dupuy’s unité de l’ordre juridique international 250 4. Bruno Simma’s analysis of community interest in international law 252 IV. Conclusion 256 6. From Legal Unity to Communicative Compatibility 260 I. Introduction 260 II. International Law as a Regime-transcendent Grammar 262 A. Law as a ‘special case’ of communicative action 262 1. Doctrinal borrowing in the event of comparable legal concepts 266 2. Recourse to general international law 268 3. Common rules of treaty interpretation 270 B. The ‘special weight’ of arguments from coherence 272 III. Shared Background Assumptions of International Relations 277 A. The common lifeworld as a precondition of communicative action 280 1. The ‘international society’ as a lifeworld substitute? 282 2. Human rights as a lifeworld substitute? 284 B. Basic legal concepts as shared pre-understandings of the international system 286 IV. Conclusion 292 7. Conflict Management through Legal Interpretation 294 I. Introduction 294 II. A Theory of Harmonizing Interpretation 295 A. Understanding versus justification 297 1. Interpretation as understanding of meaning 298 2. Interpretation as justification of claims to rightness 303 B. Interpretation of one rule ‘in light of’ another rule 305 1. Article 31(1) of the Vienna Convention 306 2. Article 31(3)(c) of the Vienna Convention 309 3. General principle of harmonizing interpretation 315 4. Principle of default deference 316 III. Accommodating the Trade Regime, the Culture Regime, and Human Rights 320 A. The scope for manoeuvre under the different regimes 320 1. WTO rules amenable to a culture-conscious interpretation 320 2. CDC rules amenable to a trade-conscious interpretation 325 B. Advancing concurrently the goals of the different regimes 326 1. Cultural liberty as the key goal of the CDC 327 2. Cultural liberty as a goal of the human rights regime 334 3. Cultural liberty as a goal that is consistent with free trade principles 337 IV. Conclusion 338 8. Conflict Management through Priority Rules 340 I. Introduction 340 II. A Typology of Priority Rules 341 A. Express conflict clauses 341 1. Priority of the treaty 341 2. Priority of the other treaty 341 3. Priority of the treaty that grants greater protection 343 4. Non-subordination clauses 343 B. The lex specialis and lex posterior maxims 344 1. Lex posterior 345 2. Lex specialis 346 3. Significance of the ‘same subject matter test’ 348 C. Conflict of laws analogies 351 1. Regime conflict as ‘horizontal jurisdictional conflict’ 351 2. The principle of comparative impairment 353 3. A comparative impairment test for adjudicating regime conflict 356 III. Conflicts among the Trade Regime, the Culture Regime, and Human Rights 357 A. Conflict clauses of the CDC 357 1. Article 2(1) of the CDC 357 2. Article 20 of the CDC 358 B. Remaining conflict situations 363 IV. Conclusion 365 German Summary 368 Bibliography 371 Index 395 Conflict Can Occur When A Body Of Law Regulating One Aspect Of International Activity Does Not Correspond With The Rules Of Another. This Book Uses Trade In Cultural Products To Illustrate That, Rather Than Being A Question Of Accidental Overlap, Such Conflicts Stem From Different Regimes Having Fundamentally Different Goals. Culture Is One Thing And Varnish Is Another -- Regime Conflict As Goal Conflict -- Regime Conflict As Institutional Conflict And Power Struggle -- Regime Conflict As Conflict Among Legal Rules -- The (ir)relevance Of International Law For Conflict Management -- From Legal Unity To Communicative Compatibility -- Conflict Management Through Legal Interpretation -- Conflict Management Through Priority Rules. Dirk Pulkowski. Includes Bibliographical References (pages 349-372) And Index. Text In English With Summary In German. "This book has been in the making for some time. lts origins lie in research that I had conducted on a narrower topic?that of 'self-contained regimes' in international law. At the time, I was struck by the variety of explanatory 'narratives' that sought to make sense of the changing configuration of the international order in the past few decades. Each narrative, detecting different degrees of unity and fragmentation in the international order, seemed pertinent in its own way provided that one accepted its theoretical premises". -- ACKNOWLEDGMENTS