6 - Resolving ‘inherent normative conflict’

Summary

Preliminary classifications for conflict resolution

Solutions in the law of treaties, the law of state responsibility and international institutional law

The conflict-avoidance techniques set out in the previous chapter may fail. An apparent conflict then becomes a genuine conflict. Having validly established it as a genuine conflict, resolution of a conflict of norms may involve different disciplines of public international law. The law of treaties, including the provisions of particular treaties, provides the bulk of all conflict rules. Nonetheless, state responsibility is highly relevant. When it comes to acts of international organisations, international institutional law must also be referred to.

‘Inherent normative conflict’ versus ‘conflict in the applicable law’

As pointed out in chapter 4, a conflict of norms may take one of two forms:

1. One of the two norms constitutes, in and of itself, breach of the other norm. This is what we called an ‘inherent normative conflict’. An inherent normative conflict will arise, for example, when a norm conflicts with another norm of jus cogens or when an inter se agreement is concluded by some parties to a multilateral treaty, in breach of an explicit prohibition to conclude such agreement. We examine the resolution of inherent normative conflicts in this chapter.

2. Compliance with, or the exercise of rights under, one of the two norms constitutes breach under the other norm. This is what we referred to as ‘conflict in the applicable law’.