NORMS CONFLICT AND ITS RESOLUTION TOOLS

IN INTERNATION LAW

HEMENDRA KUMAR

LLM/980/2021

INTRODUCTION

International law is the independent legal system in which different countries comes together
and make binding rules, regulations and laws which are binding between the countries.
International law is set of various rule, agreement and treaties which regulate the conduct of
countries toward each other in order to maintain the world peace and order. According
to Prof. L. Oppenheim, “Law of Nations or International Law is the name for the body of
customary and conventional rules which are considered legally binding by the civilized states
in their intercourse with each other.”1.

The notion behind the international law is that it will bring unity amongst the countries,
maintain peace and order and, promote the welfare of the state as well as of their citizen.
However, international law is felt short due to serval shortcoming such as : no proper
enforcement authority apart from International Court of Justice which has limited powers; no
appropriate legislative authority, therefore rules and laws are determined through treaties,
agreement and convention between the countries and there is no uniformity in the
interpretation of these rule therefore countries interpret according to their interests; in
addition in the international legal system there no sanction on the countries which violates
any treaties, lastly, inability to intervene in the domestic matter of the state. Beside this, there
is no hierarchy of norms in the international law it is horizontal system. This led to conflict
among the different norms which referred as “Norms Conflict”.

In this essay my main focus on the term “norms conflict resolution tool”. In the first part of
the essay deals with the definition (both narrow and broad) and types and causes of norms

1
Definition of International Law by L. Oppenheim
conflict in the international law. The next part deal with norms conflict resolution tool such as
“lex specialis” and “lex posterior”. The next part of this essay will analyse case law on norms
conflict.

WHAT IS NORMS CONFLICT?

This essay is about the “tools for norms conflict in the international legal system” therefore it
became necessary to understand “What is norms conflict in international law?”. Norms in
relation to international legal system can be defined as “legally binding rules establishing
certain rights and obligation between the subject of international law”.2 Norm’s conflict in the
international law can be explained in simple words, as the situation where two or more norms
(former and subsequently) framed by a country and these norms are now somehow
incompatible with each other in manner that implementation of one of the norms will
frustrate the application of another. However, in academics there is debate between the
scholars over the broad and narrow definition of the norm’s conflicts in the context of
international law.

The classic definition which is still seems to be prevailing in the international legal system
was first given by the “Wilfred Jenks” in the treaty of conflict of law. According to him the
definition of the norms conflict is “A conflict in the strict sense of direct incompatibility
arises only where a party to the two treaties cannot simultaneously comply with
its obligations under both treaties.”3 In contrary the advocates of board definition argue that
the term norms conflict would also include the situation when there is compatibility between
the rights and obligation, obligation and prohibition, and, rights and prohibitions. Pauwelyn
consider this narrow approach to the definition of norms conflict is not appropriate it presume
that obligation should always prevail over the rights and “leads to predetermined solutions to
conflicts before one has even identified the conflict” 4. In my opinion, the narrow definition of
norms conflict limits its scope and is unable to address the conflicts that are outside the scope
of this definition and only able to provide a predetermined solution to the different conflict

2
Milanovic, 2009(I): P-72
3
Jenks, supra note 1, at 426 (emphasis added)
4
Pauwelyn, 2003, p. 170-171 and 175
and therefore, many conflicts remain unaddressed. Sometime a goal of treaty may get
frustrated with another without there being any strict inconsistency between them. I believed
that the definition of the term “norms conflict” should be broad not only in the international
legal system but also in any other legal system. Consequently, the broad definition will
expand the scope of the conflicts of norms, and the international legal system would be more
efficient in addressing these conflicts and provide better tools for resolution. And for the
purpose of this essay, I will use board definition of the term norm conflict.

Causes of Norms Conflict

“Pauwelyn claims that norms of international law can only interact with each other in two
ways: they either accumulate or conflict.” 5 Conflict of norms are present not only in the
international legal system but also in any other legal system. However, the presence of norms
conflicts in the international legal system is more frequent than any other legal system.
Although the problem is not the presence of norms conflict but the absence of a proper
resolving mechanism to these conflicts.

Norms conflicts in the international legal system are inevitable because of its unique feature.
Unlike the domestic legal system in international law, there is no centralized legislative body.
Norms are created by the different states between the states through entering into treaties or
agreements. As all states are sovereign equal the norms created by them also possess equal
value. Therefore, no hierarchy of norms in international law. These sovereign equals i.e.,
states, can enter into as many treaties or agreements as they want with any state according to
their need and interest. Therefore, in international law, there are a plethora of norms that
imposed servals obligations and give servals rights to the same or different state. in
international law, there is a lack of coordination while framing the norms between the states.
The particular reason for the circumstance there is conflicts between these norms. This
actively demonstrates that the absence of a hierarchy of norms in international law led to the
norms conflict.

Besides this, another feature of international law that has resulted in the norms conflict is not
the presence of a centralized adjudication institution. Although there are numbers of

5
Pauwelyn, 2003, p. 161
adjudication institutions with different jurisdiction which are established by the different
treaties and convention in the international legal system because of this particular reason
there is overlapping of jurisdictions and this result in conflict between the states in finding the
jurisdiction. Along with no centralized adjudication institution there is no uniformity in
interpretation of the norms in international law. Consequently, each states tends to
interpretated the norms according to their interest and this creates situation of confusion. No
uniformity of interpretation is one of another reason behind the norms conflict.

Along with this there are many other reasons of why international law is arguably has greater
potential for conflicts of norms as compared to other legal system. The inherent
fragmentation nature of the international law. According to the Study Group, fragmentation
represents the international legal angle of the process of ‘functional differentiation’ that is
occurring in various aspects of society.6 Crucially, the “emergence of specialized and
(relatively) autonomous rules or rule-complexes, legal institutions and spheres of legal
practice” illustrate fragmentation in international law.7 Therefore fragmentation can be
associated with the steadily increase in the international instrument (treaty conventions and
agreements), institution and court along with increase in their specialization. Thus, I believe
that fragmentation is the reason behind the norms conflict. However, that doesn’t mean that
fragmentation is bad practice but we should mitigate the negative effect of fragmentation by
reducing the fragmentation in some situation. One more reason is that there in relatively less
arbitral and judicial practice in international law on norms conflict. As Borgen suggests, this
must result in part from the wish of States parties to negotiate issues of apparent conflict
between themselves and not to give the power to outsiders to decide on what may appear as
coordinating difficulties that may have their roots already in the heterogeneous interests
represented in national administrations8.

These are few reasons why norms conflict is frequently occurs in the international legal
system. I believe however in order to mitigate the conflicts of norms is not favourable to
change the entire system of the international law. Norm’s conflict is inevitable in every legal
system. Such change would frustrate the positive aspect of current international system such

6
ibid para 7
7
ibid para 8
8
FRAGMENTATION OF INTERNATIONAL LAW: DIFFICULTIES ARISING FROM THE
DIVERSIFICATION AND EXPANSION OF INTERNATIONAL LAW Report of the Study Group
of the International Law Commission Finalized by Martti Koskenniemi ; Para -41
as: unity, strength, peace and security, welfare of human being. International community
should rather focus on establishing useful resolving technique to these conflicts.

Types of norms conflict.

Under the broad and wide definition of norms conflict which I am taking into account for the
purpose of this essay, there are several types of norms conflicts in international law. Norm’s
conflict can be classified on the basis of jurisdictions, institutions, time of the creation of
norms (prior and subsequent laws) and conflict between special and general law, and conflict
in the relationship between law at different hierarchical levels.

1. Conflicts between the special law and general law are further classified into three
categories

(a) Conflict between general law and special law and unorthodox interpretation of
general law’
This form of conflict is occurred when there is no uniformity in the technique of
interpretation between the different institution. Although this problem of different
interpretation is common in domestic legal system as well. But it seems more
problematic when there are numbers of institution in the international legal system but
lack of proper institutional hierarchy and centralized body. As we discussed earlier
different institution make different interpretation of the same norms in accordance
with their need and interests. For example, there may be a case where two different
institution interpretate regarding general law of law of sea. One institution interpreted
the norms in such a way that give a state right to use over part of sea. Contrary to this
other institution give right to use on same part of sea to other state. this will give rise
to conflict between these two states over the right to use. In domestic law similar
situation can effectively solve by the instrument of appeal because of presence of
hierarchy in institution. However, it become complex in the international legal system
where there no such hierarchy. This creates atmosphere of confusion, chaos and
inequity between the legal subject of international law. It became to predict the
 behaviour of the different institution and there is always sense of uncertainty of norms
among the subject of the international law.

(b) Conflict between general law and a particular rule that claim to exits an
exception to it
This situation might be arisen when an institution decided matter completely different
from what have been decided in similar matter in the past because the new case
claimed under the exception of general law, not in general law.

(c) Conflict between two types of special law.

This situation might arise when there is conflict between the special law. For instance,
In the 1998 Beef Hormones case, the Appellate Body of the World Trade
Organization (WTO) considered the status of the so-called “precautionary principle”
under the WTO covered treaties, especially the Agreement on Sanitary and
Phytosanitary Substances (SPS Agreement). It concluded that whatever the status of
that principle “under international environmental law”, it had not become binding for
the WTO.9 Again instance like this create sense of uncertainty among the subjects of
international law and decision or determination of norms depends on the which
framework of interpretation used by the institution

2. Conflicts between successive norms;

This conflict arises when a state is entering into two successive treaties on same subject
matter. Due to this there is conflict between the prior and subsequent norms In regards to
application in the given circumstance. Article 30 of the Vienna Convention on Law of Treaty
suggest the technique for dealing with such conflicts.

Tools for resolution norms conflict

The inherent fragmentation nature of the international law without any coordination
between the states while creating the norms, and there is no such restriction on
fragmentation of international law. In consequences, there are plethora of norms in the
international law therefore it is inevitable in legal system with such special feature to

9
European Communities - Measures Concerning Meat and Meat Products (Hormones) 13 February 1998, WT/DS26/AB/R,
WT/DS48/AB/R, paras. 123-125.
have some amount of conflict between these norms. However, there are some tools,
technique and principle are established by the customary law of international law, law of
treaties and by some treaty itself .to solve these conflicts. For example, article 30 of the
Vienna Convention of Law of Treaties deal with Application of successive treaties
relating to the same subject-matter, some rules for solving norms conflicts are lex
specialis, lex posterior, lex prior, and article 103 of the charter of United nation talks
about the relationship of UN charter with other international agreement.

Types of technique

In order to deal with the norms conflict there are two types techniques which is required

to exercise by the judicial bodies i.e., avoidance and proper resolution. Milanovic
makes a difference between conflict avoidance on one hand, and conflict resolution on
the other.10 He claims that a norm conflict is not truly resolved unless “the state bears
no legal cost for disregarding one of its commitments in favour of another”.11

Avoidance of the Conflict

Avoidance of the conflict can be done by the judicial body with the interpretative
approach. Under these techniques judicial body interpretate the norms in such a way that
would no inconsistency between norms in order to erase the conflict. Article 31 of the
Vienna convention on law of treaties deals with the rule of interpretation of the treaties.
Especially article 30(3)

Article 30(3): There shall be taken into account, together with the context:

(a) any subsequent agreement between the parties regarding the interpretation of the
treaty or the application of its provisions;

(b) any subsequent practice in the application of the treaty which establishes the
agreement of the parties regarding its interpretation;

(c) any relevant rules of international law applicable in the relations between the parties.

Considering these things at the time of interpretating the norms would in some cases can
avoid the conflict. This approach is known as principle of systematic interpretation. This

10
Milanovic, 2009(I), p. 73.
11
ibid, p. 73-74.
technique of solving norms conflict are tries to maintain compatibility between norms.
In this technique none norm is prevail over other and subrogate the other. That the
reason this technique is seems more attractive but it comes with very limited scope (not
apply very there is genuine incompatibilities between the norms)

Proper resolution of Conflict

As Milanovic said “norm conflict is not truly resolved unless”, the state bears no legal
cost for disregarding one of its commitments in favour of another”. 12 The proper
resolution technique for solving the conflicts of norms is that technique under which one
norm prevail over the other and other will get subrogate. Proper resolution approach
should be used to solve the genuine conflicting norms. For example, lex specialis, lex
posterior, lex prior, and article 103 of the charter of United nation talks about the
relationship of UN charter with other international agreement.

Resolution in customary international law

Lex-posterior

Along with the “Rule of Interpretation” which mentioned in article 31 of the Vienna
convention on law of treaties, there are other provision which provide resolution tools to
norms conflict in VCLT. Article 30(2), 30(3) and article 30(4) of Vienna convention on
law of treaties provide for the provision of lex-posterior that state that if a later treaty is
concluded between the same parties, that shall prevail over an earlier, and the earlier can
only function to the extent that it does not come into conflict with the latter. This
provision is based on the maxim that is “Lex posteriori derogate legi prior” and it is well
known principle even in domestic law means the later law will derogate the earlier

law.i.e., latter treaty between the same parties will prevail over the earlier treaty. the lex
posterior applies only if nothing else follows from party intent.

Lex- specialis

12
ibid, p. 73-74.
This principle of solving norms conflict is widely accept tools for solving the conflict of
norms not only in the international law but in domestic law as well. This principle is
based on the maxim “lex specialis derogat legi generali” means special law derogate
from general law. This doctrine suggests that whenever these is conflict between the
special law and general law on same subject matter then the earlier (special law) one
will prevail over the latter (general law). Law considered the relationship between the
general law and special law in two ways. In one case the application of general law in
the special circumstance and in other case application of the special law as an exception
to the general law in the later case the special derogate from the general law. However,
in both the case the special law shall prevail over the general law.

However, “Lex specialis is unlikely to be useful due to the fact that the conflicting
norms usually both are lex specialis against each other.” 13in other word it is unlike that
the conflict arise between the general law and special law, conflicts usually arise
between the two special law. one of the major difficulties in applying this principle is to
make distinction between the general law and special law. It is difficult because every
general law is particulate in the sense it deals with some special issue and every treaty is
considered as special law because it deals with particular subject matter.

Resolution when one norm is Jus Cogen

Whenever there is conflict between two norms out of which one is peremptory norms
then the peremptory norms shall prevail over the other. ARTICLE 53 of Vienna
Convention on Law of Treaties have provision to deal with the situation when treaties
conflicting with a peremptory norm. It states that “a treaty is void if, at the time of its
conclusion it conflicts with a peremptory norm international law”14. The preparatory
norms are those for which no derogation is allowed and recognized by the international
community as a whole as peremptory norm. However, its application is limited in
resolution of conflicting norms because is very unlike that any treaty will create a norm
which is incompatible with the peremptory norms (jus cogen).

Article 103 UNITED NATION CHARTER

13
Ibid.
14
Article 53 of the Vienna Convention on Law of Treaties
Article 103 of the United Nation also severs as the conflicting resolution tool when there
is conflict between the obligation under the UN charter and obligation any other
agreement. It states that “in the event of a conflict between the obligations of the Members
of the United Nations under the present Charter and their obligations under any other
international agreement, their obligations under the present Charter shall prevail.”15.
However, article 103 is considered as “last resort” to deal with conflicts. It is applied when all
the other techniques are unable to solve the conflict, such as where systematic interpretation
method failed to provide resolution. This article set aside the principle of lex-specialis and
lex- posterior. However, when there is conflict between the obligation set out by UN charter
and peremptory norms then the latter one will prevail.

Other Conflicting Resolving Tools

General Principle of Interpretation

Many of the conflicts of norms in international law is arising because different states, courts
and institution interpretating the same norms in different way according to their convenience
and interest. This is happening because there is no rule general rule of interpretation of treaty
in the international law. Through adopting general rule of interpretation in the international
legal system then it would definitely mitigate the conflict up to some extent.

Principle of Harmonisation interpretation

This principle of harmonisation could serve the as a tool for resolution of norms conflict.
Whenever there is two or more set of norms on any particular matter then they should be
interpreted, if possible, in such a manner that no set of norms will get frustrate. And if such
interpretation is not possible then should be interpreted in a way that in that both set of norms
together up to the extend give rise to single set of norms with are compatible to both norms.

Proper Technique of Drafting Treaties

The best way to solve the conflict is to avoid the potential of conflict at first place. The use
proper technique at the time of drafting a treaty may avoid the potential of conflict at the time
of its application. While drafting a treaties international subject should take into account the
existence of prior treaties on same subject matter of each state who seek to draft the treaty. It
is important to take account not only the prior treaties on same subject matter but also prior
treaties on similar subject matter. These processes need great coordination between the states
15
at the time of drafting a treaty but these techniques possibly may avoid the conflict or at least
mitigate it.

Conflict Resolution Clause

Another technique which might serve as better and efficient resolution tool that is inserting
the conflict resolution tools at the time of drafting the treaty. State while drafting a treaty
could insert the conflict resolution clause which determine the method, principle and
technique to resolve the conflict and they can determine or established an institution which
will have the jurisdiction to solve the future conflict and the decision such institution will
binding the member state of the treaty.

Hierarchy of Norms

This is the special feature of the international law that there is no in general hierarchy of
norm, as norms are created by the different states which are sovereign equable so norms
created by them possess equal value. There no hierarchy of norms in international law.
However, there are some exceptions to it such as jus cogen norms for which no derogation is
permitted. We can create some sense of hierarchy among the norms which are fundamental
or important for each state in order to resolve when there is conflict of such norms.

Power to intervene

This could be the last resort in resolution of conflict of norms. When there is conflict of
norms that is unable to resolve even after using all the method technique and principle, in
such case a power to decide should be given to any institution such as ICJ, UNSC or any
other institution with the consent of parties to the treaty. In this way it will serve as the
resolution to the conflict.

These are few methods along with the method which are mention in customary international
law to deal the conflicts of norms. These techniques methods and principle if applied with
correctly and similarly depending on matter in issue it will definitely able to deal better and
more efficiently with the conflict. However, it is not sufficient to deal with all kinds of
conflicts in the international law. The phenomena of conflict of norms are inevitable in every
legal system. The thing which matters is how system deals with the conflicts.
Cases on Norms Conflict

In this part of the essay, I will examine the some of the cases based on the norms conflict in
international law and how their resolution took place. This part will examine the approach of
courts adopted in the matter of conflict of norms.

Federal Court of Switzerland:

In case Al-Dulimi and Montana Management (2008) in this case there was conflict
between the obligation un the UNSC and the right under the convention of Swiss law.
the court decided the cases by applying the article 103 of UN charter .and held that the
UNSC resolution shall prevail.

Iraq: Al-Jedda v. The United Kingdom

IN this case there is conflict between the Convention obligation and UN charter
obligation. The court in this case rather applying article 103 of UN charter directly
decided the matter by interpreting the norms by adopting harmonization approach. It
means if there is room for the harmony interpretation. then there in need not to apply
other method or resolution of conflicts

Along with these there are many other cases on norms conflict such as Al-Dulimi and
Montana Management Inc. v. Switzerland (2016): Al-Dulimi and Montana Management

Inc. v. Switzerland (2016): Detention in Iraq: Al-Jedda v. The United Kingdom (2011) 16.
In this following case the approach of the court is different from each other some
adopted the approach of harmony interpretation or some adopted article 103 of UN
charter. There is lack of legal security in the international legal system.

CONSLUSION
The main focus of this essay is on the phenomena of norms conflict in the international legal
system. Norms conflicts are likely to present in every legal system but the silent feature of
international law makes it more prone to these conflicts. In the international legal system,
there is no centralized legislative body, lack of centralized adjudication institution due to this
there is always a sense of confusion regarding the jurisdiction, the hierarchy of norms

16
Al-Jedda v. The United Kingdom (2011
because norms are by sovereign equal, no proper section on breach of treaty, Although the
inherent fragmentation nature of the international law is becoming problematic for the
policymaker because of uncertainty and no legal security in the international system. In
consequence of these special features of international law, there are a plethora of norms in the
international legal system which leads to a conflict of norms. Some examples of norms
conflict in international law are conflict between the general and special law, the conflict
between the successive treaty, the conflict between the two special laws, etc.
Although norms conflict is inevitable in every legal system it became problematic in
international law because, unlike domestic law, there is no proper mechanism to solve this
conflict. However, there is some tool mentioned in customary general international law. For
example, article 30 of VCLT talks about the Application of successive treaties relating to the
same subject matter, article 31 of VCLT of deals with the general rule regarding the
interpretation of the treaty, Article 103 of the UN charter also deal with conflict relation to
UN charter relationship. Along with this provision, there are some general principles to deals
with conflicts, such as lex-specialis, lex posterior, systematic harmonized approach of
interpretation. However, these conflict resolution tools are insufficient in the present situation
of international law. There is a need for proper coordination for developing better and more
effective mechanisms to deal with norms conflict
To sum up, everything that has been stated so far, if the treaty does not consistence with each
other then the notion behind the international law will get frustrated. Therefore, there is felt a
strong need for proper and centralized adjudication and norms conflict resolution tools. To
make this happen in the world of changing circumstances along with the inherent
fragmentation nature of international law there is a need for strong coordination and
convergence between the subject of international law.