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@ The Author 2012. Published by Oxford University Press. All rights reserved
doi: 10.1093/chinesejil/jms034; Advance Access publication 18 May 2012
Is Characterization
of Treaties a Solution
to Treaty Conflicts?
Ahmad Ali Ghouri*
Abstract
The Vienna Convention on the Law of Treaties (VCLT) rules on the reso-
lution of treaty conflicts are known as being despondently unhelpful. One
identified lacuna is that these rules disregard many differences present in dif-
ferent kinds of treaties. This paper characterizes treaties on the basis of their
differences and investigates whether this yields legal rules to resolve treaty con-
flicts. This paper presents three broad characterizations founded on: (A) the
subject matter; (B) the number of State Parties; and (C) the intended
objects and purposes of treaties. Respecting the intended objects and purposes,
this paper presents three sub-characterizations, namely: (i) universal character
treaties; (ii) constitutional character treaties; and (iii) treaties with conflict reso-
lution clauses. The results are variegated, but the discussions expose the mythic
role of treaty characterization in the resolution of treaty conflicts.
I. Introduction
1. In this paper, I investigate the role of treaty characterization in determining the
hierarchy between conflicting treaties.' Treaties are the means by which States
undertake binding obligations under international law. 2 Due to their contractual
formation, treaties are horizontal instruments having no priority over other treaties.
However, treaties may conflict with each other when a State cannot simultaneously
* Lecturer in Law, University of the Punjab, Pakistan (email: ahmgho@utu.fi). I am grateful to

the reviewers for encouragement, comments and advice. This paper was completed on 30
March 2012. All websites were current as of that date.
1 Cf. Fragmentation of international law: difficulties arising from the diversification and expan-
sion of international law, Report of the Study Group of the International Law Commission,
Finalized by Martti Koskenniemi, UN General Assembly Doc A/CN.4/L.682 (ILC Study
Group Report), 15, para.17 (commenting on the fragmentation of international law through
new treaty regimes, which at the same time are united by the 1969 Vienna Convention on the
Law of Treaties (VCLT), concluded in Vienna on 23 May 1969, entered into force on 27
January 1980, United Nations Treaty Series, Vol. 1155, 331).
2 See VCLT, above n.1, art. 2(1)(a).
11 Chinese JournalofInternational Law (2012), 247-280

248 Chinese]IL (2012)
fulfil obligations contained in two treaties. Ambiguities regarding the meaning of

treaty provisions or whether both treaties are reconcilable are within the scope of
interpretation. 3 If they are irreconcilable, we need rules determining the hierarchy
between conflicting treaties to resolve the conflict. The Vienna Convention on
Law of Treaties (VCLT) codifies the rules of international law applicable to treaties.
International lawyers have widely admitted the deficiency and inadequacy of the
VCLT rules in resolving treaty conflicts.5 Critics hold that this deficiency of the
VCLT rules paves ways for the unprincipled political determination of treaty con-
flicts by States Parties.6 In Section II of this paper, I analyse whether the VCLT's
normative tools and those available outside the VCLT framework fail to provide ad-
equate legal solutions for treaty conflicts.
2. The Report of the Study Group of International Law Commission on Fragmen-
tation of International Law (ILC Study Group Report, ILC Study Group or Report)7
suggests that by treating different treaties alike, the VCLT rules obscure many differ-
ences that treaties actually have.8 The ILC Study Group Report further suggests that
one of the reasons for the failure of the VCLT rules on the resolution of treaty conflicts
is their disregard of the many differences between treaties.9 States use treaties for a
variety of purposes in the international arena. The multi-purpose and multi-faceted
use of treaties suggests that States tend to comprehend different types of treaties as op-
erating in different normative environments. The variant normative environments in
which treaties operate animate the hierarchical order when two treaties irreconcilably
conflict with each other. Therefore, at least in theory, it seems appropriate to determine
criteria to characterize treaties that define principles to determine the hierarchy between
conflicting treaties. Treaties differ from each other on the basis of their subject matter,
number of parties or the intended objects and purposes. Failure of the VCLT's "one
rule fits all types of treaties" approach to resolve treaty conflicts and the visible differ-
ences in treaties raises this question: is it possible to differentiate and characterize treaties
in a way that yields predictable and uniform criteria for the determination of hierarchy
between conflicting treaties?
3 See Jan Klabbers, Treaty Conflict and the European Union (2009), 34-35 (explaining what
is and what is not within the scope of interpretation in treaty conflicts).
4 VCLT, above n.1, art. 30.
5 See, for example, Klabbers, above n.3 (criticizing VCLT rules to resolve treaty conflicts); ILC
Study Group Report, above n.1, 138, para.277 ("Confronted with relations between treaty
regimes such as those habitually understood to exist in trade law, human rights law, or envir-
onmental law, article 30 remains equally disappointing.").
6 Klabbers, above n.3, 88 and 91 (explaining the VCLT rules fall-back on the political deter-
mination of treaty conflicts).
7 ILC Study Group Report, above n. 1.
4
8 Ibid., 125, para.2 1 ("the fact that the VCLT treats all treaties alike obscures the many differ-
ences that actual treaties have").
9 Ibid.
Ghouri, Characterization of Treaties 249
3. In Section III of this paper, I characterize treaties on the basis of their variant
physiognomies. To be precise, I present three characterizations based on:
(A) the subject matter of treaties;
(B) the number of State Parties to treaties; and
(C) the intended objects and purposes of treaties.
Respecting the intended objects and purposes of treaties, I present three sub-char-
acterizations, namely:
(i) universal character treaties;

(ii) constitutional character treaties;
(iii) treaties with conflict resolution clauses.
However, I do not claim that these are the only means to characterize treaties.lo
With the help of these characterizations, I discuss and analyse whether such charac-
terizations identify legal rules to resolve treaty conflicts. I summarize the overall
assessments and conclusions drawn from the discussions in Section IV of this paper.
II. Treaty conflicts and the despondency of the VCLT

and other rules"
4. Treaty conflicts can be identified in terms of the conflicting obligations acquired
by States under two treaties.1 2 Treaty conflicts give rise to issues regarding validity
10 Such as political, commercial or technical treaties-see V.D. Degan, Sources of International

Law (1997), 475 (commenting on the classification of treaties); or, on the basis of "form" and
"content", see Shabtai Rosenne, The Perplexities of Modern International Law: General
Course on Public International Law, 291 Recueil des Cours (2001), 371 ("There are two
broad methods of classification [of treaties], one by form and other by content"); or, accord-
ing to "laterality-bi, tri, pluri, multi-lateral or regional", "subject matter-general and par-
ticular" and "scholarly label-law-making or contractual", see Oliver Dorr and Kirsten
Schmalenbach, Vienna Convention on the Law of Treaties: A Commentary (2012), 31.
My focus in this paper is to characterize treaties in their least common denominator.
Other more sophisticated treaty characteristics, for example the nature of obligations treaties
have created such as law-making, integral, absolute or erga omnes, are important tools to de-
termine the hierarchy between conflicting treaties but work effectively as comparators in iso-
lated cases when two particular treaties are in conflict-see M. Fitzmaurice and 0. Elias,
Contemporary Issues in the Law of Treaties (2005), 147 (analysing the classification of
treaty obligations). I have discussed the treaty "obligation" characteristics within the all-ex-
haustive characterizations proposed in this paper.
11 This section of the paper heavily draws on my earlier research. See Ali Ghouri, Determining
Hierarchy between Conflicting Treaties: Are There Vertical Rules in the Horizontal System?,
2 Asian JIL (published online 29 February 2012) (journals.cambridge.org/action/
displaylssue?jid=AJL&volumeld=-1 &seriesId=0&issueld=-1).
12 See Seyed-Ali Sadat-Akhavi, Methods of Resolving Conflicts between Treaties (2003), chs. II
and III (description of several types of treaty conflicts).
and enforceability of conflicting State obligations in one of the treaties. 13 Obliga-

tions in two treaties are in conflict when a State cannot simultaneously fulfil
them without violating one of the two obligations. More precisely, a conflict
arises when two obligations cannot be fulfilled by all addressees, at all times and
in all spaces covered, with regard to all objects and purposes, and in all conditions
specified by the obligations.' 4 The VCLT-a treaty on treaties' 5-provides rules for
the resolution of treaty conflicts. A plain reading of VCLT Articles 30 and 59 reveals
three interdependent interpretive tests for the application of lex posterior derogat
priori, or the later rule trumps an inconsistent earlier rule (lex posterior), to
resolve treaty conflicts':
(a) The subject matter test-what is the subject matter of treaties in question?
(b) The chronology test-what is the chronology of their adoption or accession?
(c) The Contracting Parties test-who are the parties to conflicting treaties?
5. International lawyers have heavily criticized the VCLT's lex posterior rule as un-
helpful in its techniques for solving treaty conflicts.' 7 The determination of the true
subject matter of treaties and the ascertainment of the exact time of their conclusion
are problematic. 1 8 The ostensible subject matter of a treaty is the interest it primarily
proposes to protect, such as trade, investment, human rights or the environment.' 9
However, the ostensible subject matter does not preclude the implications that spe-
cific treaty provisions may have for other interests. For example, an investment pro-
motion and protection treaty may expressly or by implication provide norms
governing human rights or the environment. Put contrariwise, the subject matter
of two treaties is the same when a norm incorporated in one treaty is incompatible
with the norm incorporated in another treaty.2 Therefore, the subject matter of two
treaties (or the particular clauses thereof) is the same when their individual norms
13 Ibid.
14 Ibid., 5-24.
15 See Richard D. Kearney and Robert E. Dalton, The Treaty on Treaties, 64 American JIL
(1970), 495 (explaining the history, nature and scope of the VCLT).
16 VCLT, above n.1, art. 30. See Ali Ghouri, Resolving Incompatibilities of Bilateral Investment
Treaties of the EU Member States with the EC Treaty: Individual and Collective Options, 16
European LJ (2010), 806, 808-810 (explaining in detail these three tests).
17 Klabbers, above n.3, 14, 87-89 and 92 (criticizing the VCLT's lex posterior approach).
18 See comments of Ian Sinclair at the 1969 Vienna Conference, Committee of the Whole, 85
Meeting, 221-222 (commenting on the problematic determination of the subject matter
and time of conclusion of treaties). Cf. Klabbers, above n.3.
19 Cf. ILC Study Group Report, above n.1, 21, paras.21-22; Ali Ghouri, Positing for Balan-
cing: Investment Treaty Rights and the Rights of Citizens, 4 Contemporary Asia AJ (2011),
95 (explaining different kinds of rules and rights created by treaties).
4
20 ILC Study Group Report, above n. 1, para.2 ("conflict exists if it is possible for a party to two
treaties to comply with one rule only by thereby failing to comply with another rule").
generate a clash of interests.21 Presuming that the determination of the real subject
matter and chronology of conflicting treaties is somehow possible in the way sug-
gested by VCLT Article 30, the lex posteriorrule fails to offer a certain and adequate
solution to normative conflicts because it is possible that the opposite lex prior rule
may provide a legally plausible solution in certain instances of conflict.
II.A. Uncertainties regarding the lex posteriorand lex prior rules

6. If two conflicting treaties deal with the same subject matter and are concluded by
the same States, then according to the lex posterior rule provided by the VCLT in
Article 59, the treaty later in time trumps the earlier treaty. The decision of Argen-
tina's C:imara Nacional Especial (National Special Court) in Cia. Territorial de
Seguras (S.A.) v. The Clara Y 22 is an example of the application of the lex posterior
rule. This case dealt with the Montevideo Convention 1879 and the Brussels Con-
vention 1910, both providing different and incompatible rules for the place and
time limitation for claims on maritime collision. Argentina was bound by both
Conventions, and because of the conflicting rules of these Conventions, could
not perform them simultaneously. The conflicting obligations of the Conventions
were also incorporated in the Argentinian Civil Code and Commercial Code, re-
spectively. The Court ruled that it is a classical principle of law that "a later legisla-
tive act will supercede an earlier one". 23
7. The lex posterior is not a conclusive rule for all types of treaty conflicts, and its
opposite, the lex priorrule, may be applied depending on the requirements of a par-
ticular situation. For example, the lex priorrule was applied by the World Court in
its Advisory Opinion in the Reservations case. 24 The Court pronounced that it is a
generally recognized principle that a multi-lateral convention is a freely concluded
agreement, and none of the parties is subsequently entitled to conclude an agree-
ment that frustrates or impairs the purpose and raison d'etre of the convention.25
The recent examples for the application of the lex prior rule are the European
Court of Human Rights (ECtHR) decisions in the Matthew v. United Kingdom
and Prince Hans-Adam II of Liechtenstein v. Germany cases.26 The ECtHR
posited the European Convention on Human Rights (ECHR) as the nature of
21 Cf. ibid.
22 Judgment of 4 May 1953, 20 International Law Reports, 429.
23 Ibid.
24 Reservations of the Genocide Convention (Advisory Opinion), ICJ Reports 1951.
25 Ibid., 21.
26 Application no. 24833/94, Judgment of 18 February 1999, European Court of Human
Rights Reports of Judgments and Decisions (1999/1), 251; Application no. 42527/98,
Judgment of 12 July 2001, European Court of Human Rights Reports of Judgments and
Decisions (2001/VIII), I.
252 ChineseJIL (2012)
treaty that trumps later conflicting treaties. 27 Another example of the application of
the lex priorrule is the decision of the District Court of The Hague in In re B.28 The
uncertain application of lex posterior or lex prior rules in variant situations makes
their utility to resolve treaty conflicts doubtful. The ILC Study Group Report
rightly reflects:
If the lex prior has general application in contract law, lex posterior has in
public law and legislative enactments. So the relationship between the two
reflects on the way one views the nature of treaties. Both analogies,
however, have their problems.29
8. Neither lex posterior nor lex prior rules, therefore, bring any certainty or clarity in
the resolution of treaty conflicts. Pauwelyn suggests that certain conflicts may be
resolved by dis-applying these temporal rules. 30 For multi-lateral treaties, he persua-
sively argues that most multi-lateral treaties are living instruments and their contents
evolve constantly through interpretation, distinct application on emerging situations
by judicial bodies and accession of new States. 3 ' The evolving nature of multi-lateral
treaties does not leave them frozen in time; for example, the UN Charter today is
not the same instrument that was concluded in 1945.32 Consequently, it is not pos-
sible to effectively resolve treaty conflicts by applying either lex posterioror lex prior
rules. In the alternative, Pauwelyn suggests that lex specialis should be applied to
resolve treaty conflicts.33 In my opinion, however, the lex specialis rule is equally un-
helpful to solve treaty conflicts in an orderly and predictable manner.
II.B. Incompetence of the lex specialisrule as a tool to resolve treaty conflicts

9. The maxim lex specialis derogat lege generalior special law derogates from general
law (lege generali) is a widely accepted rule of legal interpretation and a technique to
resolve normative conflicts.34 There are problems with the precise definition of
lex specialis, however.35 Pauwelyn considers lex specialis to have equal strength as
lex posterior to determine the most current expression of States' will. 36 The ILC
27 Prince Hans-Adam II of Liechtenstein v. Germany, 2001 Application no. 42527/98,

European Court of Human Rights Reports of Judgments and Decisions (2001/VIII), 1,
4
Judgment of 12 July 2001, para. 7.
28 Judgment of 26 May 1952, 19 International Law Reports, 318.
29 ILC Study Group Report, above n.1, 124-125 (para.241 onwards).
30 Joost Pauwelyn, Conflict of Norms in Public International Law: How WTO Law Relates to
Other Rules of International Law (2003), 378.
31 Ibid.
32 Cf. Klabbers, above n.3, 97 (commenting on the evolutionary nature of the UN Charter).
33 Pauwelyn, above n.30, 385. Cf. Klabbers, above n.3, 99.
34 ILC Study Group Report, above n.1, 34, para.56.
35 Ibid., 35, para.58.
36 Pauwelyn, above n.30, 388.
Ghouri, Characterizationof Treaties 253
Study Group Report devotes significant attention to the lex specialis rule.37 The
Report portrays special law (lex specialis) as either a new interpretation of the old
(general) law or a rule that operates as an exception to the general law.38 The expres-
sion "new interpretation" suggests that an uncontroversial or exhaustive interpret-
ation in every possible perspective of a general rule of international law exists, of
which a new interpretation can be made. This view of lex specialis appears to over-
look that varying interpretations of a general rule may be triggered by varying policy
considerations adopted by the institutions applying the rule. This aspect of lex spe-
cialis perhaps promotes the rule as a device for political preference rather than nor-
mative determination.
10. The interpretive divide of different institutions may, therefore, be classified as
institutional conflicts (or systems conflicts) rather than rationality conflicts.39 For
example, interpretation of one rule by a trade institution, such as the WT0 40 or
an investment treaty arbitral tribunal such as the International Centre for Settlement
of Investment Disputes (ICSID) tribunal, 4 1 might be different (and possibly con-
flicting) from that by a human rights institution, such as the ECtHR, because all
of these institutions are specialized bodies that apply norms in their respective con-
texts and perspectives. Which one of the two interpretations should be treated as
new interpretation or lex speciali Therefore, designating a new interpretation of
a norm as lex specialis appears to be a misreading of lex specialis as a general rule
of treaty interpretation. One may argue that such a reading of lex specialis is
helpful in resolving normative conflicts within an institution (system or regime).
However, rationality conflicts arise where a specialized institution is required to
apply and interpret norms differently from its own perspectives, such as a trade
body applying or interpreting a norm in the human rights or environmental law
perspectives. 42 Such rationality conflicts would be resolved only by determining
the hierarchy between conflicting norms.
37 ILC Study Group Report, above n.1, 47-65.

38 Ibid., 30-35.
39 Cf. Klabbers, above n.3, 35-36 (commenting on rationality conflicts).
40 See Sabrina Safrin, Treaties in Collision? The Biosafety Protocol and the World Trade
Organization Agreements, 96 American JIL (2002), 606 (analyses the resolution of treaty con-
flicts within the WTO regime); see also Lorand Bartels, Treaty Conflicts in WTO Law-A
Comment on William J. Davey's Article "The Quest for Consistency", in: Stefan Giller
(ed.), 8 At the Crossroads: The World Trading System and the Doha Round, European Com-
munity Studies Association of Austria Publication Series 129 (www.springerlink.com/content/
0 04 0 4 6
v0p 3 5 3 7 31 t/fulltext.pdf).
41 ICSID is an autonomous international institution established under the Convention on the
Settlement of Investment Disputes between States and Nationals of Other States (the ICSID
or the Washington Convention). The ICSID Convention was entered into force on 14
October 1966. As on 10 April 2006, 143 countries have ratified the Convention (icsid
.worldbank.org/ICSID/ICSID/RulesMain.jsp).
42 Klabbers, above n.3, 36-39 (commenting on rationality conflicts).
11. The ILC Study Group's second definition of lex specialis,i.e. a rule operating
as an exception to general law, is equally unhelpful in solving institutional conflicts.
In the narrower sense, ex specialis may work as a conflict resolution technique when
two valid and applicable legal provisions have no express hierarchical relationship
but provide incompatible directions to deal with the same set of facts.43 For this,
the Report suggests that the "special" provision trumps the general provision, but
defines the special provision as the rule with a more precisely "delimited scope of
application".4 4 The Report admits the problems in determining the "delimited
scope of application" of a rule. It acknowledges the indeterminate nature of "sub-
stantive coverage" of a provision and the number of legal subjects at whom it is
directed. The Report appears to have suggested that conflicts between a territorially
limited general regime and a universal treaty are the areas that can be decided on
their "merits" and not through lex specialis.45 But the Report does not explain
what these "merits" are. Furthermore, there are problems with the application of
lex specialis against a general rule that protects an objective sociological interest.
The adjustment of lex specialis with general provisions that enjoy hierarchical
status is also problematic. 47 Lex specialis, both as an exception and as a new inter-
pretation, remains helpful in conflicts within a regime, especially where a treaty
48
itself declares special rules and requires their priority over general rules.
12. The ILC Study Group Report further distinguishes the application of lex spe-
cialis in respect of parties and subject matter of treaties.4 9 Respecting the parties
involved, the Report concludes that the lex specialis is largely irrelevant in hard
cases, where a State has undertaken conflicting obligations towards two or more
States and needs to determine which obligation trumps.50 The Report proposes
an inevitable fall-back on the political determination of disputes in such situa-
tions. 51 Respecting the subject matter, lex specialismay operate as a conflict-resolving
technique when both the general and the special rule deal with the same subject
matter. 52 The requirement of same subject matter rules out the capacity of lex spe-
cialisto resolve regime-to-regime conflicts because they ostensibly deal with different
subject matters. In conclusion, lex specialis in its all possible applications cannot

44 Ibid.
45 ILC Study Group Report, above n.1, 35-36, para.57.
46 Ibid., 37, para. 6 1 .
47 Ibid., 38, para.62.
48 Ibid., 38, para.6 4 ; Cf. ibid., 41, para.71 (commenting on special and general rules within
a treaty).
49 Ibid., 61, para.112.
50 Ibid., 62, para.115.
51 Ibid.
52 Ibid., 63, para.11 6 .
Ghouri Characterization of Treaties 255
resolve all types of treaty conflicts. In addition to lex posterior,lex prioror lex specialis
that deal with chronology and subject matter of treaties, the VCLT rules dealing
with parties to conflicting treaties are also highly problematic and unhelpful to
resolve treaty conflicts.
II.C. Problems with the VCLT rules where parties to an earlier treaty
are different from parties to a subsequent conflicting treaty
13. The VCLT rules governing the conflict of two treaties between the same States
are relatively unambiguous. However, they are problematic when parties to an earlier
treaty are different from the parties to a later conflicting treaty. 53 VCLT Article
30(4) deals with the application of successive treaties on the same subject matter in-
volving different parties, and provides:
When the parties to the later treaty do not include all the parties to the earlier
one:
(a) as between State Parties to both treaties the same rule applies as in para-
graph 3;
(b) as between a State Party to both treaties and a State Party to only one of
the treaties, the treaty to which both States are parties governs their
mutual rights and obligations.54
Paragraph 3 states, in essence, that "the earlier treaty applies only to the extent its
provisions are compatible with those of the later treaty".
14. By virtue of Article 30(4)(b), when the conflicting treaties are concluded by
different States, treaty conflicts are resolved in a way that preserves the validity of
both incompatible treaties rather than determining priority inter se. Article 30
does not declare any of the conflicting treaties void. On the contrary, a State
Party to both of the treaties is entitled to choose which obligation it will violate
in the light of the "relative effects" of such violations, or what is commonly referred
to as the "principle of political decision".5 5 In other words, the VCLT shifts the
focus away from normative determination of priority to State responsibility under
international law. 56 Article 30(5) affirms this position by making the application
of Article 30(4) without prejudice to the potential responsibility of a State arising
out of treaty violation due to the legal consequences of incompatibility maintained
by Article 30(4).
53 Ghouri, above n.19, 8-10.

54 VCLT, art. 30(4).
55 Klabbers, above n.3, 88 and 91 (commenting on the principle of political decision).
56 Sadat-Akhavi, above n.12, 72 (commenting on the State responsibility in case a State
breaches its treaty obligation).
II.D. The principle of political decision in the resolution of treaty conflicts

15. In applying the "principle of political decision", a State may arbitrarily choose
one treaty obligation at the expense of another conflicting treaty, contrary to a prin-
cipled resolution of treaty conflicts. 57 The principle of political decision, whether
termed as a "right" or a "power" of election,58 is unable to resolve treaty conflicts
in a neutral manner.59 First, the principle does not provide a "principled
method" to resolve treaty conflicts having nothing to do with legal principle and
much to do with power and politics.60 Consequently, it undermines the basic
goal of treaty-making, namely, decreasing the politicization of international rela-
tions and increasing rule-based decision-making and conflict resolution.6 The
question is whether States' preference of one treaty over another is purely a political
province. Klabbers, for instance, does not agree that the principle of political deci-
sion is a general principle of law. 62 He is convinced that political judgments may not
always be for the better. 63 In my opinion, the political choice instead of normative
determination subordinates the resolution of treaty conflicts to an impulsive arbi-
trary power motivated by political considerations. States can choose a less
onerous treaty obligation that might undermine the most desired interests for
which international law requires protection.6 4
III. Treaty characterization: a solution?

16. The VCLT's lex posterior rule to resolve treaty conflicts is problematic. Neither
lex priornor lex specialis offers uniform and predictable rules. The principle of pol-
itical determination does not resolve the actual conflicts and allows an unprincipled
political power to prioritize conflicting treaties. All these rules and principles are in-
conclusive, uncertain or inappropriate for the resolution of treaty conflicts. We need
to search for alternatives. In the following sections, I explore the possibility of
57 Klabbers, above n.3, 88.

58 See G. Fitzmaurice, Third Report on Law of Treaties, II ILCYB (1958), draft art. 18, para.5
(commenting on the principle of political decision).
59 See Klabbers, above n.3, 90-93 (discusses in detail the principle of political decision).
60 Cf. Christopher J. Borgen, Resolving Treaty Conflicts, 37 George Washington ILR (2005),
573, 576 (commenting on the principle of political decision).
61 Cf. Ibid. (commenting on power and politics in treaty conflicts).
62 Klabbers, above n.3, 92. See also Jan B. Mus, Conflicts between Treaties in International
Law, 45 Netherlands ILR (1998), 227 (comments on the principle of political decision).
64 See Prosper Weil, Towards Relative Normativity in International Law?, 77 American JIL
(1983) 413; and Ghouri, above n.1 1 (both commenting on fundamental interests in inter-
national law that can be viewed in the context of an individual as well as the national and
international societies at large, the observance to which is of fundamental importance to
the international community as a whole).
characterizing treaties within the framework of international law and I investigate

whether such characterization produces any principles to resolve treaty conflicts.
The hypothesis is that States utilize treaties for a variety of purposes, suggesting
that different treaties operate in different normative environments. The assertion
that treaties operate in different normative environments implies that they should
accumulate an inter se normative hierarchical order in irreconcilable conflict situa-
tions.65 We can characterize treaties by an analogy to domestic agreements such
as "legislative" or "contractual" treaties.66 Legislative treaties lay down rules for
the behaviour of parties over a period of time in different subject areas, whereas con-
tractual treaties may deal with exchange of goods or acts. 67 Vagts has rightly pro-
posed that treaty characterization has less to do with the "nature" of a treaty than
the "interest" from which it is described.68 This suggests the possibility of character-
izing treaties with the help of their different natures and described interests.69
Looking at their variant natures, protected interests and normative environments,
treaties may be characterized as follows:
(A) with respect to their subject matters;
(B) with respect to the number of State Parties;
(C) with respect to their intended objects and purposes.
III.A. Characterization of treaties respecting their subject matters

17. The subject matter of a treaty is the area of activity it governs. 70 Subject matters
governed by treaties cover such a large number of areas that their exhaustive listing is
practically impossible. Protection and promotion of investment, free trade, extradi-
tion, human rights, taxation, friendship, commerce and navigation are some of the
broad areas that separate treaties into general groups respecting their subject
matters. 7 ' However, characterization respecting the subject matters governed by
65 Ghouri, above n. 11 (discussing that international dispute settlement bodies maintain a

value-oriented normative hierarchy between conflicting treaties).
66 Cf. Borgen, above n.60, 581 (analysing treaties as contractual and legislative instruments,
"The VCLT does not formally recognize the categorization of treaties as legislative or
contractual").
67 Ibid.
68 See Detlev F. Vagts, Treaty Interpretation and the New American Ways of Law Reading, 4
European JIL (1993), 474.
69 Cf. ILC Study Group Report, above n.1, 18, para.23 (stating that no definite rules exist on
the classification of treaties except with respect to the interest from which they are described;
but noting alarm that this leads to a wholly arbitrary choice between which interests are rele-
vant and which are not in a conflict situation).
6
70 See ILC Study Group Report, above n.1, 129-131, paras.253-25 (explaining the subject
matters covered by treaties and possibilities for their determination).
71 Vagts, above n.68, 474 (commenting on the subject matters of treaties).
treaties may be imprecise or inconclusive, as most treaties can be described from

various perspectives. 72 Borgen suggests that a precise compartmentalization of treat-
ies respecting their facial or ostensible subject matters is not a legally satisfying cri-
terion because treaties of seemingly different subject matters may overlap either in
effect or in their regulatory scope.73 For example, a treaty dealing with trade may
have significant human rights and environmental implications and vice versa.
Likewise, a treaty on maritime transport of chemicals relates at least to the law of
75
the sea, environmental law, trade law and the law of maritime transport.
Another example of misperception on subject matters can be bilateral investment
treaties (BITs) that provide protection of foreign investors' property, whereas the
ECHR, which is principally a human rights treaty, also provides the right to peaceful
enjoyment of possessions. 76 The subject matter of treaties may be identified only
in broad general terms describing their face value, such as economic and non-
economic treaties, human rights and environmental protection treaties and so on,
which may not have a normative value per se in determining the hierarchy
between conflicting treaties.
18. Can we determine the real subject matter of a treaty with the help of its title?
Titles assigned to treaties are informal labels that describe treaties from the perspec-
tive of different interests or policy objectives.77 Titles play a role in the ascertain-
ment of the subject matter of a treaty at the macro level. At the micro level, the
phraseology of each treaty provision within its genre, the hermeneutics in its inter-
pretation, the inferences from omissions, additions and changes in terminology, the
intended outcome, applicability and effects determine the real subject matter gov-
erned by a treaty. Furthermore, Afrasiabi suggests that a series of treaties dealing
with different subject matters between all or some of the States Parties may create
78
complementary or supplementary relationships between new and old treaties.
He gives an example of the bilateral and trilateral treaties on the legal status of
79
Caspian Sea among Iran, Russia, Kazakhstan, Turkmenistan and Azerbaijan,
72 ILC Study Group Report, above n.1, 17 (commenting on the description of treaties from
various perspectives).
73 Borgen, above n.60, 580.
74 Ibid.
75 Ibid.
76 Protocol 1, art. 1 of the ECHR, 4 November 1950.
77 ILC Study Group Report, above n.1, 17 ("[treaty titles] are only informal labels that describe
the instruments from the perspective of different interests or different policy objectives").
78 Kaveh L. Afrasiabi, The Legal Regime of the Caspian Sea: Beyond the Conflicting Treaties,
Payvand Iran News (17 September 2003) (www.payvand.com/news/03/sep/1 106.html).
79 See Mehrdad Haghayeghi, Russia's Regional Role: Conflict or Cooperation, The Coming of
Conflict to the Caspian Sea, 50 Problems of Post-Communism (2003), 32 (www.mtholyoke.
edu/courses/sfjones/242s/restricted/conflictscaspian.pdf) (gives details of treaties con-
cluded by littoral Caspian States).
and the recent Framework Convention for the Protection of the Marine Environ-
ment of the Caspian Sea. 80 For these series of treaties, Russia has adopted a
stage approach" suggesting that agreements on fishing, exploitation of natural
resources, navigation, environment and scientific research would become "incre-
mental" or "branch" agreements to the future comprehensive agreement on the
status of the Caspian Sea. 8 This approach reflects that the subject matter of these
apparently different treaties would be treated as the same when the terms defined
or norms incorporated in these treaties reciprocate each other. 82 The broad
general characterization of treaties based on their designated titles may, therefore,
not reflect the actual subject matter they implicitly deal with in their application
to various factual situations. In conclusion, characterization based on treaty titles
would embody no normative value per se.
19. For the resolution of treaty conflicts, characterization of treaties based on their
subject matter covertly requires discussion on the concept of "self-contained
regimes".8 3 The expression "self-contained regime" was coined by the Permanent
Court of International Justice (PCIJ) in the S.S. Wimbledon case, where the
Court needed to determine whether the general provisions of Treaty of Versailles
on German waterways also applied to the Kiel Canal for which the treaty provided
a special section. 8 4 The Court declared that the presence of a special section on the
Kiel Canal that provides rules substantially different from those relating to other
watercourses required interpretation without inference from the other general provi-
sions in the treaty." Likewise, the International Court of Justice (ICJ) in its judg-
ment in the Tehran Hostages case explained the concept of self-contained regimes
when discussing the role of customary international law in the interpretation of
the Vienna Convention on Diplomatic Relations (VCDR). The ICJ noted that
by providing specific rules to govern the diplomatic relations and conduct of diplo-
mats in host States, the VCDR becomes a self-contained regime and the remedies
provided by general international law are not available in the event of violations of
the VCDR rules. 8 6 Subsequently, the ILC Special Rapporteur Willem Riphagen
80 Signed by five littoral Caspian States: Azerbaijan, Iran, Kazakhstan, Russian Federation and
Turkmenistan in Tehran (Iran) on 4 November 2003.
81 Afrasiabi, above n.78.
82 Ibid.
83 Bruno Simma and Dirk Pulkowski, Of Planets and the Universe: Self-Contained Regimes in
International Law, 17 European JIL (2006), 483, 490 (explaining the self-contained regimes
and their discussion in the context of subject matters of treaties).
84 S.S. Wimbledon, PCIJ, Set. A, No. 1.
85 Ibid., paras.32-33.
86 Case concerning the United States Diplomatic and Consular Staff in Tehran [1980] ICJ
Rep. 41, paras.83-86.
frequently but somewhat paradoxically8 7 referred to the concept of self-contained

-88
regimes.
20. The PCIJ and ICJ dicta suggest that the self-contained regime envisages en-
tirely autonomous and closed legal systems having complete sets of primary and sec-
ondary rules and functioning in total isolation from general international law and
other treaties dealing expressly or implicitly with the same subject matter.89
Borgen believes that the concept of self-contained regimes may serve as a normative
tool to characterize treaties by differentiating the "liberalizing" regimes, such as trade
and investment, from the "regulating" regimes, such as human rights and the envir-
onment. He thinks that this notion of self-contained regimes would dictate the sub-
stantive results of treaty conflicts by prioritizing the liberalizing regimes over the
regulating regimes. 90 Borgen, however, does not explain the legal basis for such a
priority. Koskenniemi, on the other hand, opposes the existence of self-contained
regimes and believes they cannot be created or operate outside the framework of
general international law. 9' He contends that the inter-regime reciprocity or
cross-fertilization is inescapable in the ordinary functioning of international rela-
tions. 92 In reality, treaty regimes reciprocate, although a treaty claims to be self-
contained when its provisions conflict with other treaties expressly or implicitly
dealing with the same subject matter.93 The Treaty on the Functioning of the
87 Simma and Pulkowski, above n.83, 493 ("Special Rapporteur Willem Riphagen's approach
was characterized by considerable ambiguity. On the one hand, Riphagen charted the inter-
national legal system as an order modelled on a variety of distinct subsystems [self-contained
regimes], within each of which primary rules and secondary rules are closely interlinked. The
regime of state responsibility was perceived as merely part of one such subsystem. Conse-
quently, in the Rapporteur's view, '[tjhe idea that there is some kind of least common de-
nominator in the regime of international responsibility must be discarded'. On the other
hand, Riphagen presented scenarios in which 'the subsystem itself as a whole may fail, in
which case a fallback on another subsystem may be unavoidable'." [references omitted]).
88 See Willem Riphagen, Third Report on State Responsibility, II ILCYB, Part One (1982).
89 Cf. Simma and Pulkowski, above n.83, 504 ("even proponents of a particularistic theory
concede that regimes 'do not live by themselves, each in its own area, but intersect and
overlap with each other"').
91 Martti Koskenniemi, Study on the Function and Scope of the Lex Specialis Rule and the
Question of "Self-Contained Regimes", UN Doc. ILC(LVI)/SG/FIL/CRD. 1/Add. 1
(2004),
99-100, paras.191-193.
92 Ibid.; Cf. Anja Lindroos and Michael Mehling, Dispelling the Chimera of "Self-Contained
Regimes" International Law and the WTO, 16 European JIL (2006), 857 (discusses the
threat arising from the ongoing proliferation of special regimes endowed with strong institu-
tional frameworks and an ability to set new international norms and explores the question
whether seemingly independent entities can claim autonomy and challenge the validity of
general international law).
93 ILC Study Group Report, above n. 1, 131, para.256 ("Treaties may of course enter into con-
flict both within and across regimes.").
European Union (TFEU) and the WTO Agreements are the most quoted examples
of special or self-contained regimes. But the case law of both the European Court of
Justice and the Appellate Body of the WTO confirms the constant cross-fertilization
of these regimes with both general international law and other treaty regimes.9 4
21. Therefore, international law has no watertight normative compartments for
treaties or treaty regimes that remain entirely uninfluenced by the normative
nexus of the surrounding regimes. VCLT Article 31 codifies rules for the interpret-
ation of treaties. Article 31(3)(c) provides the so-called principle of systemic integra-
tion of treaties as follows:
General rule of interpretation [..
3. There shall be taken into account, together with the context:

[...] (c) any relevant rules of international law applicable in the relations
between the parties.
22. The ILC Study Group Report states that this principle of systemic integration
enshrines the process to interpret international obligations by reference to the nexus
of their normative environment.95 McLachlan explains the gist of this principle:
[A] treaty will normally be capable of interpretation and application according
to its own norms and context. But in hard cases, it may be necessary to invoke
and express justification for looking outside the four corners of a particular
treaty to its place in the broader framework of international law, applying
general principles of international law.96
23. McLachlan further outlines and convincingly proves with the help of decided
cases 97 three principles that Article 31(3)(c) requires for treaty interpretation,
namely 8:
(a) reinstate the central role of customary, or general, international law in the
interpretation of treaties;
(b) locate the relevance of other conventional international law in this process;
and
(c) shed new light on the position of treaties in the progressive development of
international law over time.
94 Ibid., 85-91, paras.161-171.

95 Ibid., 208, para. 4 13.
96 Campbell McLachlan, The Principle of Systemic Integration and Article 31(3)(c) of the
Vienna Convention, 54 ICLQ (2005), 279, 281.
97 Ibid., 295.
98 Ibid.
262 Chinese IlL (2012)
24. Many commentators suggest that the "rules of international law" reiterated in
VCLT Article 31(3)(c) include rules emerging from any of the sources of inter-
national law, including treaties. 99 The "relevant" rules of international law require
some bearing, direct or implicit, on the subject matter of a dispute. For the inter-
pretation of a treaty, the other treaty would be a relevant rule of international law
if it governs the state of affairs in relation to which the interpreted treaty is exam-
ined.' 00 If all the parties to the treaty under examination are also parties to the
other treaty, it fulfils the requirement of "applicable in the relation between the
parties" because the other treaty provides rules binding on all the parties to the
first treaty.10 1 In reality, treaties cross-fertilize when they inform the interpretation
of other treaties dealing with the same subject matter either wholly or in part, express-
ly or implicitly. An interesting example is the cross-fertilization of the well-developed
ECHR regime with the emerging foreign investment regime.
25. The ECHR regime comprises the European Convention on Human Rights,
whereas the foreign investment regime is made of several BITs and some free trade agree-
ments having investment chapters, such as the North American Free Trade Agreement
(NAFTA) Chapter XI. Both these regimes ostensibly deal with different subject matters
but both provide rules for the protection of private property.' 02 Based on similarities in
these treaties, a BIT arbitral tribunal in the Laudercase, noting that the applicable US-
Czech Republic BIT did not provide clear definition of expropriation, resorted to the
ECtHR Melacher case 0 3 to derive a neat definition of different types of expropri-
ation.10 4 This is an example of cross-fertilization when two treaties inform each other
05
because of their similar norms dealing with the same subject matter. In an ICSID
arbitration in the International Thunderbird Gaming Corp. v. United Mexican States
case, the notes in a separate opinion of one of the arbitrators (Thomas W. Wide)
relied on human rights treaties to interpret NAFTA Chapter XI.'os
99 Ulf Linderfalk, On the Interpretation of Treaties, The Modern International Law as

Expressed in the 1969 Vienna Convention on the Law of Treaties (2010), 177.
100 Ibid., 178.
101 The Vienna Conventions on the Law of Treaties, A Commentary, edited by Olivier Corten
and Pierre Klein (2009), 433, para.25.
102 Protocol 1, art. I of the ECHR declares peaceful enjoyment of possessions as a human right.
Likewise, BITs necessarily provide rules on compensation for expropriation or other harm
caused by States to the property owned by investors coming from States Parties.
103 Mellacher v. Austria, 169 European CtHR (ser. A) (19 December 1989).
104 Ronald S. Lauder v. Czech Republic, 2001 WL 34786000 (UNCITRAL Final Award 3
September 2001), paras.200-202.
105 See above n.41.
106 See International Thunderbird Gaming Corp. v. United Mexican States, 2006 WL 247692,
para.13 (NAFTA Ch. 11 Arbitral Tribunal 2006) (Thomas W. WAlde's separate opinion).
There are many other examples of human rights investment treaty cross-fertilizations. See,
for example, Mondev International Ltd. v. United States of America, ICSID Case No.
ARB(AFAF)/99/2, Award of 11 October 2002, paras.93-150; EnCana
26. The question, however, is whether cross-fertilization of treaties helps resolve

treaty conflicts. Consider the situation where the dispute settlement system of a
treaty regime is required by a disputing party to decide on a matter by applying a
colliding rule of another treaty between the same parties because both rules deal
with the same subject matter. Furthermore, what if the disputing party argues
that other incompatible or conflicting treaty trumps because of the nature of the
governed subject matter? Human rights treaties are likely candidates to acquire
such a hierarchal role. The ILC Study Group Report, referring to the ECJ
rulings declaring priority of the ECHR over the prior conflicting treaties, although
somewhat unenthusiastically, suggests that:
We are in presence of a hierarchy that seems best dealt with by the notion of
special "integral" obligations-such as obligations in human rights treaties-
that enjoy some kind of a precedence to merely transactional bilateral
instruments. 0 7
27. The ILC Study Group Report is sceptical that this statement of principle
endorses any of the conflict resolving maxims (e.g. lex specialis, lex posterior, lex
prior or lex superior).0 8 The statement nonetheless enunciates the conviction that
human rights treaties possess normative force trumping other treaties because the
human rights obligations are "integral" or "absolute" in their nature. 109 The
Report, however, stops short of declaring that the integral and absolute nature of
obligations created by some treaties would resolve the general question of primacy
between conflicting treaties. 1 10 In my opinion, in cases of irreconcilable inter-
regime conflict, adjudicators are inclined to prioritize human rights treaties when
they conflict with other treaties on a case-by-case basis"' which may evolve into
their per se characteristic trump.112
Corp. v. Ecuador, 2005 WL 3804543 (London CtlA 2006), para.176; Saipem

S.p.A. v. Bangladesh, ICSID Case No. ARB/05/7, Decision on Jurisdiction and Recom-
mendation on Provisional Measures, 21 March 2007, paras.61 and 129 (for full text of
these awards, see www.italaw.com).
108 Ibid.
109 Ibid., 127, para.249 ("It highlights the normative force of human rights treaties (perhaps as
'integral' or 'absolute' treaties) but probably does not resolve the general question of primacy,
and certainly cannot be cited as a blanket endorsement of lex posterior.").
110 Ibid.
111 See, e.g., Soering v. United Kingdom, 161 ECtHR (Ser. A) 1989, rep. 28 ILM (1989), 1063.
112 See Ghouri, above n. 11, 7 (commenting on the "value internalization process" in inter-
national law whereby new norms emerge and acquire hierarchical status on the occurrence
of consensus of international society).
264 Chinese IL (2012)
III.B. Characterization of treaties respecting the number of State Parties

28. Respecting the number of State Parties, treaties are divided into "bilateral", or
concluded between two States, and "multi-lateral", or concluded or joined (by ac-
cession or otherwise) by several States. It is unclear if the term "multi-lateral" signi-
fies whether an overwhelming number of State Parties or any number more than two
States would constitute a treaty as multi-lateral. Characterization of treaties into bi-
lateral and multi-lateral is central to determining the nature of their obligations. For
example, the ICJ in the Reservations case distinguished the nature of multi-lateral
and bilateral treaty obligations:
[It is a] generally recognized principle that a multilateral convention is the
result of an agreement freely concluded upon its clauses and that consequently
none of the contracting parties is entitled to frustrate or impair, by means of
unilateral decisions or particular agreements, the purpose and raison d'&re of
the convention.1 13
29. The ILC Study Group Report admits difficulties in explaining the meaning of
this dictum. 14 Discreetly, however, the passage suggests an implicit trump of an
earlier multi-lateral treaty over a subsequent bilateral treaty between two States
Parties to the multi-lateral treaty. The dictum favours a characteristic trump of
multi-lateral treaties over subsequent bilateral treaties between two or some States
Parties when the later frustrate the raison d' tre of earlier treaties. One could
argue that this approach establishes the rarely appreciated normative value of "re-
gionalism" as lex specialis that trumps other treaties. 115 It is debatable whether a re-
gional multi-lateral treaty as lex specialiswouldalways operate in isolation (just as do
self-contained regimes) uninfluenced by other "integral" or "absolute" treaty obliga-
tions. 116 In other words, a multi-lateral treaty providing non-integral obligations
may not enjoy superiority where the subsequent bilateral treaty provides integral
or absolute obligations frustrating the raison d'itre of the multi-lateral treaty.
30. A comparatively less discussed area respecting the number of State Parties to a
treaty is the normative value of a large number of bilateral treaties concluded by an
overwhelming number of States dealing with the same subject matter and contain-
ing similar (or to some extent identical) provisions. Bilateral investment promotion
and protection treaties (BITs) are an example of such treaties. 117 The ILC Study
113 Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide
case, Advisory Opinion, ICJ Reports 1951, 21.
1
115 Cf. ibid., 102, para. 95 (commenting on regionalism).
116 See in this paper paras. 2 7, 33, 43 and 58-60.
117 According to United Nations Conference on Trade and Development (UNCTAD), more
than 2700 BITs have been concluded at the end of 2009. Most BITs have identical (or at
least similar) clauses on free movement of capital, most-favoured-nation treatment and so
Group Report states that the wide spectrum of legislative activity through treaties on
global and regional levels is leading to the emergence of clusters of treaty law on spe-
cialized topics with complex relationships between treaties within and beyond such
clusters or regimes. 118 The cluster of BITs has, however, started to develop inter-re-
lationship. The cross-fertilization of BITs interse based on the most favoured nation
clauses incorporated in most BITs has become an established norm in the investment
treaty regime."' Chalamish thinks that the abundant number of BITs effectively
serves as a defacto multi-lateral treaty on investment, but observes that this accumu-
lated multi-lateral treaty lacks a unified institutional support.120 The International
Convention on the Settlement of Investment Disputes (ICSID Convention) is a
multi-lateral treaty ratified by 143 States and provides dispute resolution support
in matters relating to foreign investment.121 As most BITs designate ICSID for
the settlement of disputes, one could argue that the ICSID Convention provides
the unified institutional support for these BITs.122
31. The ICSID Convention is also relevant in the interpretation of those BITs
that designate, in addition to ICSID, other dispute settlement forums giving
options to parties, where the parties do not opt for the ICSID. For example, in
the Romak case,123 an UNCITRAL Arbitral Tribunal needed to interpret the
term "investment" in the Swiss-Uzbekistan BIT. This term is also present in the
ICSID Convention but the claimant argued that the wider notion of investment
on. See UNCTAD Compendium, Bilateral Investment Treaties (BITs): A Compilation

(www.unctad.org/Templates/webflyer.asp?docid=907&intltemlD=31 38&lang= 1&mode
=downloads).
119 See, for example, Stephan W. Schill, Multilateralizing Investment Treaties through Most-
Favored-Nation Clauses, 27 Berkeley JIL (2009), 496 (commenting on the role of most-
favoured-nation clauses in the development of consolidated BIT regime).
120 Efraim Chalamish, The Future of Bilateral Investment Treaties: A De Facto Multilateral
Agreement?, 34 Brooklyn JIL (2009), 303, 340.
121 See above n. 4 1.
122 Most ICSID Awards reveal the tendency to interpret BITs to explain the meaning of "invest-
or" and "investment" within the parameters of the ICSID Convention. See, for example,
Fedax N.V. v. Republic of Venezuela (ICSID Case No. ARB/96/3), Decision on Jurisdic-
tion of 11 July 1997, 5 ICSID Rep. (2002), 183, para.43; Salini Costruttori S.p.A. and Ital-
strade S.p.A. v. Morocco (ICSID Case No. ARB/00/4), Decision on Jurisdiction of 23 July
2001, 42 ILM (2003), 609, paras.55-56; Phoenix Action v. Czech Republic, Award of 15
April 2009, para.82; Bayindir Insaat Turizm Ticaret Ve Sanayi A.S. v. Islamic Republic of
Pakistan, ICSID Case No. ARB/03/29, para.137; Joy Mining Machinery Limited
v. Egypt, ICSID Case No. ARB/03/1 1, paras.53 and 62; Jan de Nul N.y. and Dredging
International N.V. v. Arab Republic of Egypt, ICSID Case No. ARB/04/13, paras.91-92;
Malaysian Historical Salvors, SDN, BHD v. Malaysia, ICSID Case No. ARB/05/10,
para.123; Romak S.A. v. Uzbekistan, PCA case No. AA 280, Award of 26 November 2009,
para.180, 207.
123 Romak S.A. v. The Republic of Uzbekistan, UNCITRAL (Switzerland-Uzbekistan BIT).
Award of 26 November 2009.
in the ICSID Convention is different from the BIT and should not be applied to
BIT investment. 124 The Tribunal, referring to the ICJ Continental Shelfcase,125
clarified that the rule of construction infers that a State Party to two or more treaties
using the same term in the same or a similar context intended to give the said term
the same or at least a compatible meaning in all treaties.126 The Tribunal then inter-
preted the term "investment" in the light of the jurisprudence developed by the
ICSID cases. 127 The Tribunal applied the ICSID jurisprudence to interpret a
BIT because both treaties deal with the same subject matter and are concluded
by the same parties. 128 The tribunal did not, however, clarify as to why the
ICSID jurisprudence trumps the BIT provision. The BIT was concluded on 16
April 1993.129 Switzerland ratified the ICSID Convention on 14 June 1968 and
Uzbekistan on 25 August 1995.130 Lex posterior under Article 30 of the VCLT,
or its opposite lex priorrules are ineffective because the BIT precedes the Uzbek rati-
fication but follows the Swiss ratification of the ICSID Convention. Additionally,
none of the two treaties provides rules amounting to lex specialis. In my opinion,
while prioritizing the ICSID Convention over the BIT, the Tribunal had in
mind that the ICSID Convention is a multi-lateral treaty ratified by an overwhelm-
ing number of States (including the BIT States Parties), which can effectively be
treated as a near-unanimous statement of international public policy and should
trump a bilateral treaty. 131
32. "Obligations erga omnes" is another aspect to examine treaty conflict respecting
the number of State Parties to treaties. Multi-lateral treaties may create obligations erga
omnes or collective obligations. 132 In contrast, bilateral treaties have been described as
capable of creating obligations only interse parties.133 Obligations ergaomnes are owed
to the international community as a whole. In case of breach of an obligation
124 Ibid., paras.168 and 193.

125 ICJ Reports 1978.
126 Above n.123, para.195.
127 Ibid., para.196.
129 Ibid., para.7.
130 See ibid., 48, n.161.
131 See The World Duty Free Company Limited v. The Republic of Kenya, ICSID Case No.
ARB/00/7, Award of 4 October, 2006 (discusses the determination of international
public policy through multi-lateral treaties ratified by majority of States).
132 Joost Pauwelyn, A Typology of Multilateral Treaty Obligations: Are WTO Obligations Bi-
lateral or Collective in Nature?, 14 European JIL (2003), 907, 908.
133 Ibid. (Pauwelyn did not say it clearly but the way he has presented his arguments suggests that
he portrays bilateral treaties as capable of creating obligations only for the States Parties inter
se); Rosenne, above n.10, 373 (commenting on "bilateral treaty [...] creates obligations
running between the parties" and "general multilateral treaty [...] creates res inter alios
acta [...] setting general obligations applying to all international entities").
erga omnes, all States irrespective of their interest in the matter can invoke State respon-
sibility against the violating State.134 If treaties are capable of creating obligations erga
omnes, they can transform from purely "contractual" instruments to "law-making" or
"constitutional" instruments having implications for non-Party States.135 Whether a
treaty can bind third parties does not raise the question of treaty conflict and is
beyond the province of this paper.' 36 The question relevant here is whether a treaty
creating obligations erga omnes trumps "general" treaties in case of conflict.
33. G. Fitzmaurice distinguished treaties creating reciprocal obligations that are
owed to States inter se from treaties creating "a more absolute type of obligation". 137
In his view, these more absolute obligations, such as disarmament treaties and hu-
manitarian conventions, assert an "integral" or "interdependent" character.' 38 This
proposes that treaty conflicts may, in appropriate cases, be resolved by giving priority
to integral obligation over general or non-integral obligation.' 39 The ILC Study
Group Report regards that the integral and interdependent nature of some treaty
obligations are "intransgressible principles" reflecting the "elementary considera-
tions of humanity" and play a more significant role in the practice of legal reasoning
to resolve treaty conflicts than the conflict resolution maxims (i.e. lex posterior, lex
prior or lex specialis).140 However, the Report concludes that the erga omnes
nature of an obligation indicates no clear superiority over other obligations:
Although in practice norms recognized as having an erga omnes validity set up
undoubtedly important obligations, this importance does not translate into a
hierarchical superiority similar to that of Article 103 [of the Charter of the
United Nations] and jus cogens.' 4 1 [Emphasis added.]
34. It reflects from the ILC Study Group Report that although treaties creating erga
omnes obligations do not have hierarchical supremacy similar to Article 103 of the
Charter of the United Nations and jus cogens, they enjoy a degree of superiority over
treaties creating non-integral obligations. In my opinion, the obligations erga omnes
can be described as integral obligations in transition to acquire the status of jus
cogens.142 However, it is not a rule that all multi-lateral treaties create obligations
134 ILC Study Group Report, above n.1, 193, para.380 (commenting on obligations erga
omnes).
135 Cf. M. Fitzmaurice, Third Parties and the Law of Treaties, 6 Max Plank YBUNL (2002), 37
(discusses the effect of law-making treaties on non-Party States).
136 See ILC Study Group Report, above n.1, 193-206 (discusses the effect of law-making treat-
ies on non-Party States).
137 M. Fitzmaurice, Third Report, II ILCYB (1958), 44, para.91.
138 Ibid.; see discussion in this paper: paras.58-60.
139 Cf. ILC Study Group Report, above n.1, 195, para.385.
140 Ibid., 205, para. 4 07.
141 Ibid., 193, para.380.
142 Ghouri, above n.1 12.
268 ChineseflL (2012)
erga omnes. Such obligations are nonetheless created by multi-lateral treaties.143 The
VCLT rules on the resolution of treaty conflicts clearly declare the superiority of
norms amounting to jus cogens over other conflicting norms.144 More detailed
discussions on Article 103 of the Charter of the United Nations (UN Charter or
Charter) follow in Section III.C.i.
III.C. Characterization of treaties respecting their intended objects and

purposes
35. The objects and purposes of treaties are different from their subject matters. The
object and purpose of a treaty is the "higher aim" that States Parties have ascribed to
a treaty irrespective of its subject matter. Treaties having higher aims may have pri-
ority over other treaties notwithstanding their mutual chronology and number of
State Parties. A treaty may have one or more clauses that parties intend as higher
aims and trump other clauses of the same treaty. 145 The discovery of the higher
aims of a treaty is, however, problematic. Places where higher aims are located
can be a special provision, a conflict resolution clause, a preamble or the intent
of parties discovered from travaux prdparatoiresor the preparatory work of treaties.
Three broad classifications of treaties can be advanced in this regard:
(i) universal character treaties;

(ii) constitutional character treaties;
(iii) treaties with conflict resolution clauses.
III.C i. Universal charactertreaties

36. States may have primarily intended that a treaty will provide a higher law to
govern the activities of all States. When such treaties are concluded by a large
number of States or widely ratified by States, they transform into universal character
46
treaties. The UN Charter, for example, is a universal character treaty.1 Universal
character treaties may also be called law-making treaties because they:
143 See Olivia Lopes Pegna, Counter-claims and Obligations Erga Omnes before the Inter-
national Court of Justice, 9 European JIL (1998), 724 (uses the example of the Convention
on the Prevention and Punishment of the Crime of Genocide (Genocide Convention,
entered into force from 12 January 1951) to analyse treaties that create obligations erga
omnes. The Genocide Convention was signed by 41 States and now has 142 parties)
(untreaty.un.org/cod/avl/ha/cppcg/cppcg.html).
145 I leave the issue of conflicts within a treaty to my forthcoming paper where I am analysing
how the human rights or the environmental protection provisions in economic nature treaties
give rise to internal treaty conflicts. I have discussed the issue to some extent in my earlier
work, however. See Ghouri, above n. 11, 17 (commenting on the WTO GATT Article XX
and analysing how it creates conflicts of treaty provisions within the WTO Agreements).
146 Above n.88, 30, para.5 4 .
[partake] of a degree of generality which imparts to them the character of le-

gislative enactments properly affecting all members of the international com-
munity or which must be deemed to have been concluded in the international
interest.147
37. The ILC Study Group Report recognizes the reflection of pragmatic sense in the
international legal order that, in specific contexts, some "criteria" are more import-
ant than others because they better secure important interests or protect important
values.' 4 8 The Report also states that the practice of international law has always
recognized the presence of some norms that are superior to other norms.149 The
Report refers to the ICJ's recognition of "elementary considerations of human-
ity"1 5 0 and suggests the existence of an important practice in international law
that gives effect to the "informal sense" that some norms are more important
than the others and should trump in cases of conflict.15 1 But the Report denies
the proximity of a general theory from which this informal sense of importance
might be derived.1 52 This suggests that in a case where a treaty does not declare
itself to have a hierarchical status, a case-by-case valuing and prioritizing of
53
norms in conflicting treaties would be required to resolve the conflict.1
38. However, the case of a universal character treaty is different because it enjoys a
predetermined priority over other treaties. The UN Charter contains a specific pro-
vision promulgating an unreserved priority of its obligations over other treaties.
Article 103 of the Charter reads:
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 inter-
54
national agreement, their obligations under the present Charter shall prevail.
39. Liivoja explores the difference between Article 103, which says only "other inter-
national agreement", and Article 102(1) of the Charter, which requires registration
of "every treaty and every international agreement". He notes that a distinction has
been made between "treaties", on the one hand, and "international agreements", on
the other.' 55 Liivoja elaborates the ascribable meanings to the expression
147 See Hersch Lauterpacht, (First) Report, II ILCYB (1953), 156.

148 ILC Study Group Report, above n.1, para.325.
149 Ibid., para.32 6 .
150 Corfu Channel Case (the United Kingdom v. Albania), ICJ Reports 1949, 22.
151 ILC Study Group Report, above n.1, 167, paras.326-327.
153 See above nn.65 and 112.
154 Charter of the United Nations, art. 103.
155 Rain Liivoja, The Scope of the Supremacy Clause of the United Nations Charter, 57 ICLQ
(2008), 583, 590.
"international agreement" in Article 103. He concludes that the ICJ in the

South-West Africa cases has elaborated that any treaty, convention, accord or other
type of international engagement or undertaking is covered by the expression "inter-
national agreements" in Article 103.156 Liivoja clarifies that Article 103 applies to
both formal and informal agreements concluded between States, but highlights
difficulties of its application where agreements are made between States and inter-
national organizations.' 5 7
40. The intent clearly establishes from the wording of Article 103 that the Con-
tracting Parties aimed to create higher rules of law, superior to international agree-
ments including treaties.158 The Charter promulgates a categorical primacy of its
obligations over other conflicting treaties. The secondary-level question as to
whether Article 103 establishes mere priority of the Charter obligations over con-
flicting treaties or goes further to invalidate the conflicting obligations15 is
beyond the province of this paper. Here, it suffices to conclude that the visible
effect of Article 103 is that the UN Member States are precluded from performing
treaty obligations that are in conflict with the Charter obligations. This effect of the
Charter obligations over other treaty obligations was affirmed by the ICJ in the
Nicaragua case.'60 The Court observed 6 1:
[I]t is also important always to bear in mind that all regional, bilateral, and
even multilateral, arrangements that the Parties to this case may have made,
touching on the issue of settlement of disputes or the jurisdiction of the Inter-
national Court of Justice, must be made always subject to the provisions of
Article 103 of the Charter [...
41. Article 30(1) of the VCLT also affirms this effect by subjecting VCLT's priority
rules applicable on successive treaties to Article 103 of the UN Charter. In view of
the near-universal membership of the UN, 162 it becomes insignificant whether the
156 South West Africa (Ethiopia v. South Africa, Liberia v. South Africa) (Preliminary Objec-
tions), ICJ Reports 1962, 319, Separate Opinion of Judge Jessup, 407; Liivoja, above
n.155, 590-591.
157 Ibid., 592.
158 Cf. Ignaz Seidl-Hohenveldern, Hierarchy of Treaties, in: J. Klabbers and R. Lefeber (eds.),
Essays on the Law of Treaties: A Collection of Essays in Honour of Bert Vierdag, 16 (com-
menting on Article 103 of the UN Charter).
4
159 Cf. ILC Study Group Report, above n.1, 170, para.33 (commenting on the effects of treaty
conflict on the unperformed obligations of one of the conflicting treaties).
160 See Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States
of America) (Jurisdiction and Admissibility), ICJ Reports 1984.
162 The number of total acclaimed sovereign States is 203, out of which 10 States do not have a
general international recognition (en.wikipedia.org/wiki/List-of sovereign-states). Out of a
total of 193 sovereign States with general international recognition, 192 are members
of the UN.
Charter obligations trump treaties where one of the contracting States is not a UN
member or between non-UN Member States. 16 3 Klabbers thinks that a superiority
clause similar to Article 103 was inevitable in a treaty with ambitions of global gov-
ernance without which the global ambitions could easily be undermined.' 6 4 The
third sentence in the preamble to the Charter sheds light on the intended objects
and purposes of Article 103. The sentence reads:
[T]o establish conditions under which justice and respect for the obligations
arising from treaties and other sources of international law can be maintained
[ ... ].16 [Emphasis added.]
42. Article 103 has clearly suspended the application of the international law maxim
pacta sunt servanda,6 6 a celebrated maxim and a cornerstone of the law of treaties,
which requires that a consensual treaty obligation is binding and must be performed
in good faith.16 ' Article 103 imposes conditions on the free consent of Member
States to perform treaty obligations that conflict with the Charter obligations and
limits the scope of pacta sunt servanda. Borgen thinks that the UN Charter is an
"exceptional" trump over all conflicting treaties because of its noble ambitions.1
Hohenveldern, however, considers that thejus cogens and erga omnes charactersof obli-
gations embodied in the Charter are "fundamental", and in reality could not be vio-
lated by other treaties anyway.' 69 In other words, Hohenwedren believes that due to
the nature of obligations created by the Charter, these obligations would have
trumped even if Article 103 were absent from the Charter. However, absent Article
103, the UN Charter would have remained superior only in the "informal
sense",170 with no unqualified restrictions on the principle of pacta sunt servanda.
43. The global ambitions, objects and purposes of the Charter include the pres-
ervation and protection of human rights.' 71 The UN General Assembly has adopted
a resolution on the Universal Declaration of Human Rights (Declaration) that reaf-
firms the faith of UN Member States in the protection of fundamental human
rights.' 72 In fact, the ICJ has declared in the Lockerbie case that the obligations
163 See Seidl-Hohenveldern, above n.158, 16.

165 See preamble to the Charter of the United Nations.
166 Seidl-Hohenveldern, above n.158, 16.
169 Seidl-Hohenveldern, above n.158, 16.
170 See discussions in this paper at para.37.
171 As laid down in the preamble and arts. 1(3), 13(1)(b), 55(c), 62(2), 68, 76(c).
172 The first draft of the Declaration was proposed in September 1948, with over 50 Member
States participating in the final drafting. By its resolution 217 A(III) of 10 December
1948, the UN General Assembly, meeting in Paris, adopted the Universal Declaration of
Human Rights, with eight nations abstaining from the vote but none dissenting.
272 Chinese IlL (2012)
of the UN Member States under the resolutions passed by the UN organs prevail
over the members' obligations under other treaties.' 73 If the prima facie Charter
obligations extend to the resolutions passed by the UN organs,1 7 4 subsequent treat-
ies made under the auspices of the UN Charter and the UN General Assembly reso-
lutions are analogous in that they create obligations protected by the Charter.
III.C ii. Constitutionalcharacter treaties

44. The ILC Study Group Report uses the term "constitutional treaty" for a treaty
that aims at providing world constitution for all States.' 7 5 In this sense, a constitu-
tional character treaty is, in fact, a universal character treaty, such as the UN Charter.
In the present discussion, I use the term constitutional character treaty to denote a
treaty that creates a greater regional alliance in such a sprawling manner that it ef-
fectively dominates the independent functioning of national constitutions of its sov-
ereign Member States. This constitutional character treaty, although it may also
inherently be a regional treaty, is not a multi-lateral universal character treaty
because it is not open for accession by all States.' 76 With this distinction, a regional
"plurilateral" treaty may be characterized as a defacto constitution of its Member
States governing their inter-relationship as well as the relationship with non-
Member States. Fischer-Lescano and Teubner suggest' 7 7 that such an "auto-consti-
tutional regime" may appropriate the status of a collective constitution for its
Member States outside the confines of their national constitutions when the follow-
ing conditions are met' .
(1) the development of an explicit constitutional discourse and constitutional

self-consciousness;
(2) a claim to foundational legal authority, or sovereignty, where sovereignty is
not viewed as absolute;
(3) the delineation of a sphere of competences;
(4) the existence of an organ internal to the polity with interpretative autonomy
as regards the meaning and the scope of the competences;
(5) the existence of an institutional structure to govern the polity;
(6) rights and obligations of citizenship, understood in a broad sense; and
(7) specification of the terms of representation of the citizens in the polity.
173 Lockerbie (Libya v. United Kingdom), ICJ Reports 1992, 3, para.39.

174 Anthony Aust, Modern Treaty Law and Practice (2nd edn. 2007), 219-220; Pierre-Marie
Dupuy, The Constitutional Dimensions of the Charter of the United Nations, 1 Max
Planck YBUNL (1997), 1, 12.
4
175 See ILC Study Group Report, above n.1, 341-345, paras.17 -175.
176 Borgen, above n.60, 580-582 (commenting on the nature of a universal character treaty).
177 Andreas Fischer-Lescano and Gunther Teubner, Regime-Collisions: The Vain Search for
Legal Unity in the Fragmentation of Global Law, 25 Michigan JIL (2004), 999, 1014-1015.
178 Ibid.
45. The TFEU179 is a prominent example of such auto-constitutional regimes.

Although the TFEU has a conflict resolution clause (ex Article 307, present
Article 351), application of this clause is limited to the pre-accession treaties.180
The difference between the TFEU and other multi-lateral treaties, for example
NAFTA, 8 1 is that the TFEU is an evolving regional alliance1 82 that can be said
to have effectively stamped the status of a "State" to the European Union
(EU).18 3 The definition of a State in Article 1 of the 1933 Montevideo Convention
on the Rights and Duties of States (Montevideo Convention) reads:
The state as a person of international law should possess the following quali-
fications: (a) a permanent population; (b) a defined territory; (c) government;
and (d) capacity to enter into relations with the other states.184
46. These qualifications were already possessed by the pre-Lisbon Treaty.' 85 The
EU, keeping in view its permanent population, defined territory and three
"pillars" of government: two dealing with the "inter-governmental" fields of
common foreign and security policy and co-operation in justice and internal
affairs, and the third dealing with the "supranational" rules on "Community
179 Formerly known as the EC Treaty, the Treaty of Rome or the Treaty establishing the Euro-
pean Community, the TFEU was given its name and amended by the Lisbon Treaty (signed
at Lisbon on 13 December 2007), and sets out organizational and functional details of the
EU. The Consolidated Versions of the Treaty on European Union and the Treaty on the
Functioning of the European Union (as amended by the Lisbon Treaty), 9 May 2008,
2008 O.J. (C 115).
180 The scope of discussion here is possible characterization of TFEU and not the operational
hierarchy of the pre-accession treaties over the TFEU on the basis of its conflict resolution
clause (ex art. 307, present 351). I have dealt with the effects of TFEU art. 307 elsewhere
in detail, see Ghouri, above n.16.
181 The North American Free Trade Agreement (NAFTA) is a regional agreement between the
Government of Canada, the Government of the United Mexican States and the Government
of the United States of America to implement a free trade area. The Agreement was signed
simultaneously at Ottawa, Mexico, D.F., and Washington, D.C., on the 17th day of
December 1992.
182 Case 294/83, Parti 6cologiste "Les Verts" v. European Parliament, Judgment of 23 April
1986, ECR (1986) 01339, 1365, para.23 (where the European Court of Justice declared
that the EU founding treaties are more than international agreements and are equal to the
"constitutional charter" of the EU).
183 For a brief historical insight into the making of the present EU, see Nikolaos Lavranos, The
Entering into Force of the Lisbon Treaty-A European Odyssey, 13 American SIL Insight
(2009).
184 A copy of the Convention is available at http://avalon.law.yale.edu/20th-century/intamO3
.asp. See Hannan, The EU Is Now Recognized as a State under International Law, Telegraph
(16 July 2010).
185 Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the
European Community, signed at Lisbon, 13 December 2007, entered into force on
1 December 2009, 50 Official JEU, 2007/C 306/01.
activities". 18 The post-Lisbon Treaty version of the TFEU expands the scope of
EU's exclusive competences by authorizing it to conclude treaties with non-EU
States, which has effectively removed all doubts187 regarding the capacity of the
EU to enter into relations with other States. The "treaty basis", wide in scope
and vaguely worded, had stretched the EU's legislative capacity over many internal
areas of the Member States even before the Lisbon Treaty. 88
47. In practice, therefore, one may presume that the EU Member States are only
authorized to exercise sovereign powers in the residual areas left to them under the
TFEU. Seeing the EU's gradual pooling of competence in the areas that were trad-
itionally within the Member States' sovereign authority, questions can be raised as to
how the EU Member States would continue to retain their external sovereignty
according to the requirements of the Montevideo Convention. If the TFEU is
viewed in international law as a federal constitution of the confederating EU
Member States, should the British and the French continue to retain their UN
seats or representations in the International Monetary Fund or the World Bank?
The answers to these questions are obviously beyond the scope of this paper.
Koskenniemi has emphatically stated that the Member States' sovereignty is a
"repressed supplement" of the EU law that:
will raise its head as soon as the question is no longer about conditions of
commercial competition but, say, territorial control, national prestige or con-
ceptions of democracy.18 9
48. However, would the TFEU trump the subsequent conflicting treaties made by
its Member States?o90 In a recent arbitration, Eureko v. Slovakia, conducted at the
Permanent Court of Arbitration (PCA or Tribunal), the Dutch investor claimed
violations by the Slovak Republic (Slovakia) of the Netherlands-Czechoslovakia
BIT to which Slovakia had succeeded.' 91 Slovakia asserted that its accession to
the EU in May 2004 terminated the intra-EU BIT or at least rendered its arbitration
clause inapplicable, and the TFEU now governs the subject matter of dispute.192
The Tribunal observed that the following treaties were applicable in the dispute:
186 ILC Study Group Report, above n.1, 112-113, paras.218-219 (commenting on the oper-
ational mechanism of the EU through its "pillars").
187 Lavranos, above n.183 (giving a brief overview of the history and functioning of the EU).
188 Martin Howe, Governance of the European Union, The European Court: The Forgotten
Powerhouse Building the European Superstate, Economic Affairs (March 2004), 17, 20.
189 Martti Koskenniemi, Hierarchy in International Law: A Sketch, 8 European JIL (1997), 566,
572.
190 See Ghouri, above nn.16 and 180 (treaties that TFEU Member States have concluded prior
to joining the EU are protected under the TFEU present art. 351).
191 Eureko B.V. v. The Slovak Republic, PCA Case No. 2008-13, UNCITRAL (Netherlands/
Czech and Slovak Republic BIT) (Eureko Award), paras.6-7.
192 Ibid., paras.8-9.
(1) The Netherlands-Slovak Republic BIT that was originally concluded on 29

April 1991 came into force from 1 October 1992, and Slovakia succeeded to
it on 1 January 1993, when it separated from Czechoslovakia;
(2) The Slovak Republic's Association Agreement with the EU of 1 February 1995;
(3) The Slovak Republic's Accession Treaty with the EU entered into force on 1
May 2004; and
(4) The Lisbon Treaty entered into force for all EU Member States on 1
December 2009.
49. Both the Netherlands and Slovakia are parties to all of the above four treaties, and
the BIT predates the other three. 193 The BIT was not protected under TFEU Article
351 as a pre-accession treaty because one of the BIT parties, the Netherlands, is a
founding EU member that predates the BIT.194 The dispute ultimately raised ques-
tions whether the TFEU trumps the BIT because of its nature and application to
the BIT's subject matter. The respondent's arguments can be summarized as follows:
(1) The TFEU governs the same subject matter as the BIT; therefore, the BIT
should be considered terminated and/or inapplicable pursuant to VCLT
Articles 59 and 30;
(2) The arbitration clause in the BIT cannot apply because it is incompatible
with the TFEU, as the ECJ has exclusive jurisdiction over Eureko's claims;
(3) Clauses such as Article 4 of the BIT relating to free transfer of capital have
been held by the ECJ to be incompatible with the EU law, which is
supreme; and
(4) Both the TFEU and the BIT cannot be applied simultaneously or in parallel;
therefore, application of the BIT is excluded' 9 5 ; and
(5) That the combined application of certain TFEU and ECHR provisions serve
the same purposes as the BIT for investors and investments, standards of pro-
tection and remedies. 196
50. Slovakia's arguments reflect that it believed that the TFEU trumps the BIT
because it is a broader treaty regime that now governs the BIT subject matter. In
response, the claimant's supervening argument was that its right to international ar-
bitration under the BIT cannot be denied because the respondent had chosen to join
4
193 Ibid., paras. 3-50. The Netherlands is one of the founding EU Member States; therefore,
the Netherlands-Slovak Republic BIT was not protected by Article 307 or 351 TFEU. See
above n.16, 180 and 190.
194 The six founders are Belgium, France, Germany, Italy, Luxembourg and the Netherlands.
The Treaty of Rome, officially the Treaty establishing the European Economic Community,
led to the founding of the European Economic Community on 1 January 1958.
195 Euroko Award, above n.191, paras.19, 58 and 59.
196 Ibid., paras.65-71.
276 Chinese ]IL (2012)
the EU.19 7 The claimant further argued that the TFEU does not provide similar
standards of protection available under the BIT.' 98 The Tribunal found, inter
alia, that even if there were TFEU-BIT incompatibility, the BIT is not implicitly
or automatically terminated unless one party notifies the other in accordance with
VCLT Article 65. The Tribunal also rejected the assumption that TFEU parties
intended to displace the central rights under BIT by narrower and more loosely
defined rights accorded by the EU law.' 99 The Tribunal did not consider TFEU
as a treaty that trumps the Member States' other treaties because it extensively
governs the subject matters covered by other treaties. Therefore, the constitutional
character per se did not bestow on TFEU an overriding effect on other treaties.
III. C iii. Treaties with conflict resolution clauses
51. In this section, I discuss the effects of priority clauses in treaties that are not pri-
marily intended to operate as law-making or universal character treaties. VCLT
Article 30(2) provides:
when a treaty specifies that it is subject to, or that it is not be considered as
incompatible with, an earlier or later treaty, the provision of that other
treaty will prevail.2 00
52. A treaty having such a clause governs potential conflicts between two treaties: the
one in which it is present and another to which it refers. Borgen identifies two "basic
types" of conflict resolution clauses 201
(1) clauses that provide for the priority of the "present" treaty; and
(2) clauses that provide for the priority of "another" treaty.
53. Borgen further quotes Blix and Emerson, who identified six general subtypes of
clauses providing priority of the present treaty 202:
(1) the present treaty prevails over all other treaties;
(2) the present treaty prevails over all earlier treaties;
(3) the present treaty prevails over earlier treaties for the parties to the present
treaty;
(4) the parties to the present treaty undertake an obligation not to enter into later
treaties inconsistent with the present one;
(5) supplementary agreements are permitted only if they are compatible with the
present treaty; and
6
197 Ibid., paras. 1-62.
198 Ibid., para.78.
200 VCLT, above n.1, art. 30(2).
202 Ibid., 585.
(6) the parties to the present treaty undertake an obligation to modify existing
treaties that they may have with non-parties.
54. Borgen again quotes Blix and Emerson and lists four general subtypes of clauses
203
that provide for the priority of another treaty
(1) existing treaties prevail;

(2) existing or future treaties giving greater benefits prevail;
(3) the present treaty is modified to conform to a future treaty; and
(4) supplementary agreements, not necessarily consistent with the present treaty,
are permitted.
55. After giving several examples of these "basic types" of clauses, Borgen
concludes204
If there are no such express provisions of priority within the four corners of the
agreements, or if any such clause is ambiguously worded, one would turn to
principles of treaty interpretation and the law of treaty conflicts to resolve a
dispute.
205
Similar conclusions have been drawn by the ILC Study Group Report.
56. The operation of priority clauses is affected by the chronology and sameness
of the Contracting Parties in successive treaties. In my opinion, four possible situa-
tions can be identified in this respect:
(1) an earlier treaty contains a clause saying it trumps subsequent treaties and the
subsequent incompatible treaty is concluded by all the parties to the earlier
treaty;
(2) an earlier treaty contains a clause saying it trumps subsequent treaties and the
subsequent incompatible treaty does not have all the parties that concluded
the earlier treaty;
(3) the later treaty contains a clause saying it trumps an earlier treaty and it is
concluded by all the State Parties to the earlier treaty;
(4) the later treaty contains a clause saying that it trumps an earlier treaty but it is
not concluded by all States that were parties to the earlier treaty.
57. Waldock explained that when a treaty contains a clause purporting to override
future inconsistent treaties, such a clause will be insignificant if all the parties to the
earlier treaty conclude a later incompatible treaty:
203 Ibid.
204 Ibid., 587.
205 ILC Study Group Report, above n.1, 138, para.271 ("sometimes conflict clauses may them-
selves conflict or cancel each other out" and become inoperative).
Clause or no clause, when concluding the later treaty they are fully competent
to abrogate or modify the earlier treaty which they themselves drew up. It is
simply a question of what they intend by the provisions of the later treaty, and
the existence of the clause in the earlier treaty can hardly affect the answer to
that question, once the later treaty is seen to contain provisions incompatible
with the earlier one. 206
58. Waldock considered that these clauses are relevant in the identification of
incompatibilities in consecutive treaties, but doubted whether they can modify
the application of the normal rules for resolving treaty conflicts (e.g. lex specialis,
lex posterior and lex prior).207 Incidentally, G. Fitzmaurice has distinguished
between the "interdependent" and "integral" obligations created by some treaties. 208
He considered that interdependent treaty obligations can be meaningful only when
they override other treaties between same parties and with non-parties because their
violation by one or more parties would prejudice the entire treaty regime. 20 9 He
gave the examples of treaties prohibiting the use of particular weapons, disarmament
or treaties prohibiting fishing in certain areas or during certain seasons. 2 10 In other
words, interdependent treaties would trump later conflicting treaties made by the
States Parties inter se or with non-parties, but would not affect conflicting treaties
made by non-Party States on the same subject matter.
59. G. Fitzmaurice defined the "integral" obligations treaty as the one in which
the force of treaty obligation is "self-existent, absolute and inherent for each party
and not dependent on a corresponding performance by the others". He gave exam-
ples of such treaties as the Genocide Convention, human rights conventions, the
Geneva Conventions of 1949 on prisoners of war, international labour conventions
and treaties imposing an obligation to maintain a certain regime or system in a given
area, such as the regime of the Sounds and the Belts at the entrance to the Baltic
Sea. 211 It appears that by making a distinction between interdependent and integral
obligations, Fitzmaurice proposed that integral obligation treaties trump inter-
dependent obligation treaties in case of conflict, although parties cannot contract
out of both types of treaties by making a non-integral obligation treaty.
206 Third Report on the law of treaties, by Sir Humphrey Waldock, Special Rapporteur,
Document, A/CN.4/167 and Add.1-3, Extract from II ILCYB (1964), 138-139, para.15.
207 Ibid.
208 Report of the International Law Commission on the work of its Sixteenth Session (11 July
1964), Official Records of the General Assembly, Nineteenth Session, Supplement
(A/5809), Document: A/CN.4/173. Extract from II ILCYB (1964), 188.
209 Third Report in II ILCYB (1958) (art. 19 and commentary).
210 Ibid.
211 Report of the International Law Commission on the work of its Sixteenth Session, above
n.208, 188.
60. Likewise, referring to the Nuclear Test-Ban Treaty, Waldock noted that some
treaty obligations are intended to apply generally to all States Parties all the time and
a subsequent treaty by one party violating its obligations under that earlier treaty
would be unacceptable. 212 Respecting the effect of a priority clause, Waldock did
not believe that insertion of a priority clause can "in any other respect" give a
treaty higher sanctity or priority than attached to it by the fact of its being earlier
(or later) in point of time. 2 13 I think, by "in any other respect", Waldock meant
that the priority clause in a treaty does not make it a law-making, integral or inter-
dependent treaty. This suggests that priority clauses may become inoperative when
the other conflicting treaties are intended to create integral or interdependent
obligations.
IV. Conclusions
61. We have seen that the rules both in and outside the VCLT framework (e.g. lex
posterior, lex prior and lex specialis) do not provide conclusive solutions for treaty
conflicts. These rules may fall back on the principle of political decision, which is
unpredictable and is not a principle in the legal sense of the term because it does
not involve any legal reasoning or rationality. States use treaties for a variety of pur-
poses in their international interactions. The multi-purpose and multi-faceted use of
treaties suggests that States comprehend different types of treaties as operating in dif-
ferent normative environments. The variant normative environments in which treat-
ies operate animate a hierarchical order when two treaties irreconcilably conflict with
each other. Therefore, it is appropriate to investigate legal criteria to characterize
treaties in the manner that uncovers principles to determine the hierarchy
between conflicting treaties.
62. Treaties cannot be neatly compartmentalized on the basis of their subject
matters because they deal with various subject matters simultaneously either expressly
or by implication. Treaty titles do not prove effective in characterizing them. The
notion of self-contained regimes potentially influences the substantive results of
treaty conflicts because self-contained regimes would trump other regimes.
However, self-contained regimes hardly exist because treaties essentially cross-fertilize
due to their multi-layered and extensive nexus of normative coverage. This cross-fer-
tilization may assist interpretation through jurisprudential exchange when two treat-
ies deal with the same subject matter. It may also result in interpretive supervision or
hierarchy when one of the conflicting treaties provides an absolute or integral obli-
gation, such as a human rights treaty. The gradual recognition of this case-by-case
212 Third Report on the law of treaties, by Sir Humphrey Waldock, Special Rapporteur, above
n.206, 139, para.16.
213 Ibid.
280 ChineseflL (2012)
hierarchy may evolve and transform into a predetermined hierarchy when human
rights treaties would per se trump conflicting non-human rights treaties.
63. A multi-lateral treaty between more States may trump a subsequent treaty
between two or some of the States Parties. A higher number of States to a treaty
may envisage priority to preserve its purpose and raison d'etre compromised by a
later treaty between a fewer number of States. In the case of the ICSID Convention
and numerous similar BITs, we have observed that a large number of bilateral treat-
ies made by many States on the same subject matter providing identical rules may
not defeat the raison d'treofa multi-lateral treaty. Treaty characterization respecting
the number of States Parties, however, produces non-conclusive rules to determine
the hierarchy because treaties creating obligations erga omnes construe integral obli-
gations and trump treaties creating non-integral obligations, although the latter has
a higher number of States.
64. Treaty characterization respecting their intended objects and purposes leads
to the establishment of conclusive priority rules to resolve treaty conflicts. A univer-
sal character treaty, such as the UN Charter, is founded to achieve "higher aims" that
the Member States have primarily intended to trump all conflicting treaties. A uni-
versal character treaty is open for accession by all States and would have an over-
whelming membership. The higher aims of a universal character treaty reflect
from the conditions imposed on the free consent of its States Parties to make treaties
incompatible with the higher aims. We have noted that such conditions imposed by
the UN Charter may be extended to human rights treaties because the protection of
human rights is one of the fundamental obligations created by the Charter and pro-
tected by resolutions of the UN organs. Some treaties, such as the TFEU, create a
regional alliance in a manner that may reflect the intention of parties to override
their other treaties. Such regional alliances, no matter how extensive they are,
would not automatically trump other treaties unless specifically provided for by a
priority clause or if the other conflicting treaties are terminated by following the pro-
cedure provided by VCLT Article 65. Treaties containing a conflict resolution or
priority clause may create special rules of priority. However, these special priority
rules would be superceded if the conflicting treaty creates integral obligations.

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Bluebook 21st ed.

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* Lecturer in Law, University of the Punjab, Pakistan (email: ahmgho@utu.fi). I am grateful to

11 Chinese JournalofInternational Law (2012), 247-280

fulfil obligations contained in two treaties. Ambiguities regarding the meaning of

(i) universal character treaties;

II. Treaty conflicts and the despondency of the VCLT

10 Such as political, commercial or technical treaties-see V.D. Degan, Sources of International

and enforceability of conflicting State obligations in one of the treaties. 13 Obliga-

II.A. Uncertainties regarding the lex posteriorand lex prior rules

II.B. Incompetence of the lex specialisrule as a tool to resolve treaty conflicts

27 Prince Hans-Adam II of Liechtenstein v. Germany, 2001 Application no. 42527/98,

37 ILC Study Group Report, above n.1, 47-65.

43 ILC Study Group Report, above n.1, 35, para.57.

53 Ghouri, above n.19, 8-10.

II.D. The principle of political decision in the resolution of treaty conflicts

III. Treaty characterization: a solution?

57 Klabbers, above n.3, 88.

characterizing treaties within the framework of international law and I investigate

III.A. Characterization of treaties respecting their subject matters

65 Ghouri, above n. 11 (discussing that international dispute settlement bodies maintain a

treaties may be imprecise or inconclusive, as most treaties can be described from

frequently but somewhat paradoxically8 7 referred to the concept of self-contained

3. There shall be taken into account, together with the context:

94 Ibid., 85-91, paras.161-171.

99 Ulf Linderfalk, On the Interpretation of Treaties, The Modern International Law as

26. The question, however, is whether cross-fertilization of treaties helps resolve

Corp. v. Ecuador, 2005 WL 3804543 (London CtlA 2006), para.176; Saipem

III.B. Characterization of treaties respecting the number of State Parties

on. See UNCTAD Compendium, Bilateral Investment Treaties (BITs): A Compilation

124 Ibid., paras.168 and 193.

III.C. Characterization of treaties respecting their intended objects and

(i) universal character treaties;

III.C i. Universal charactertreaties

[partake] of a degree of generality which imparts to them the character of le-

147 See Hersch Lauterpacht, (First) Report, II ILCYB (1953), 156.

"international agreement" in Article 103. He concludes that the ICJ in the

163 See Seidl-Hohenveldern, above n.158, 16.

III.C ii. Constitutionalcharacter treaties

(1) the development of an explicit constitutional discourse and constitutional

173 Lockerbie (Libya v. United Kingdom), ICJ Reports 1992, 3, para.39.

45. The TFEU179 is a prominent example of such auto-constitutional regimes.

(1) The Netherlands-Slovak Republic BIT that was originally concluded on 29

(1) existing treaties prevail;

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