METHODS OF RESOLVING CONFLICTS BETWEEN TREATIES

Transcription

1 METHODS OF RESOLVING CONFLICTS BETWEEN TREATIES Seyed Ali SADAT-AKHAVI MARTINUS NUHOFF PUBLISHERS LEIDEN / BOSTON

2 TABLE OF CONTENTS INTRODUCTION 1 PART ONE PRELIMINARY OBSERVATIONS 3 CHAPTER ONE THE CONCEPT OF 'CONFLICT' 5 I. Definition of Conflict 5 II. Causes of Conflict 7 1. The Same Act Is Subject to Different Types of Norms 7 2. One Norm Requires an Act, While the Other Norm Requires or Permits a 'Contrary' Act 8 3. One Norm Prohibits a 'Necessary Precondition' of Another Norm 9 4. One Norm Prohibits a 'Necessary Consequence' of Another Norm 10 III. Types of Conflict 'Partial' and 'Total' Conflicts 'Bipartite' and 'Multipartite' Conflicts 'Supervening' and 'Constant' Conflicts 13 IV. Schematic Representation of Conflicting Norms Constituent Elements of the Diagrams Diagrams Representing Conflicting Norms 17 A. Identical subjects 17 B. One subject is more general 19 C. Overlapping Subjects 20 D. Disjoint Subjects 23 V. Summary 23 VII

3 CHAPTER TWO ASCERTAINING THE EXISTENCE OF CONFLICT: REAL AND FALSE CONFLICTS 25 I. Interpretation of Norms Interpretation as a Means of Ascertaining the Existence of a Conflict Some Problems of the Interpretation of Norms 28 A. Norms Having an 'Implied' Meaning 28 B. The Meaning of the Term 'Right' 30 II. Reconciliation of Norms The Concept of 'Reconciliation' Some Instances of Reconcilable Norms 35 A. Concurrent Permissive Norms Can Never Conflict 35 B. Two Norms May Have 'Canceling' Effect without Being Conflicting 38 C. One Norm May Relate to the 'Manner' in Which the Other Norm Must Be Performed 41 IQ. Summary 43 PART TWO RULES OF INTERNATIONAL LAW FOR RESOLVDSfG CONFLICTS 45 CHAPTER THREE CONVENTIONAL LAW 47 I. The System of the Vienna Convention on the Law of Treaties One Treaty Affects the 'Existence' of the Other Treaty 48 A. Termination of the Earlier Treaty 48 B. One Treaty Invalidates the Other Treaty Both Treaties Are in Force 56 A. Amendment of Treaties 56 B. Modification of Treaties 57 C. Successive Treaties Relating to the Same Subject-Matter 59 (i) The Pre-Eminence of the Charter of the United Nations 60 (ii) Conflict-Resolving Clauses 61 (iii) Rules for Resolving Conflicts 62 (a) The Later Treaty Includes All the Parties to the Earlier Treaty 62 (b) The Later Treaty Does Not Include All the Parties to the Earlier Treaty 63 (c) The Question of the Validity of the Later Treaty 66 viu

4 (iv) The Critiques of the Vienna Convention 70 (a) It Does Not Address the Question of Conflicting Obligations towards Different States 70 (b) Problem of Determining the 'Later' Treaty 75 (c) It Does Not Take Account of the Position of Regional Treaties 81 (d) It Does Not Take Account of Treaties Containing Obligations erga omnes 82 (e) The Ambiguity of the Term 'Treaty' in the Context of Article II. Specific Treaty Clauses Aiming at Resolving Conflicts Definition of Conflict-Resolving Clauses Types of Conflict-Resolving Clauses 87 A. Clauses Giving Priority to the Treaty in Which They Are Incorporated 87 (i) Priority over Existing Treaties 87 (ii) Priority over Future Treaties 88 (iii) Priority over Both Existing and Future Treaties 90 B. Clauses Giving Priority to Other Treaties 92 (i) Priority of Existing Treaties 92 (ii) Priority of Future Treaties 93 (iii) Priority of Both Existing and Future Treaties The Problem of Concurrence between Conflict-Resolving Clauses 96 CHAPTER FOUR CUSTOMARY INTERNATIONAL LAW 99 I. State Practice as Reflected in Decisions of National Courts and Governmental Documents Priority of the Later Treaty over the Earlier One Priority of the Special Treaty over the General One The Hierarchy between Norms Priority of the 'Principal' Treaty over the Treaty 'Implementing' It Denunciation of Existing Treaties as Means of Avoiding Conflict Priority of the 'More Favorable Provision' in the Field of the Protection of Human Rights The Principle of 'Legislative Intent' The Principle of 'Maximum Effectiveness' 105 ü. Treaty Practice of States Conflict between Universal Treaties 109 A. Universal Treaties Having the Same Scope 109 (i) Priority of the Later Treaty 109 (ii) Priority of the Earlier Treaty 111 ix

5 B. The Scope of One Treaty Is Special 114 (i) The Special Treaty Is Later in Time 114 (ii) The General Treaty Is Later in Time 120 C. Universal Treaties Which Are Partially Overlapping in Scope 134 (i) Priority of Earlier Treaties 134 (ii) Priority of the Later Treaty Conflict between Universal and Closed Treaties 142 A. A Universal Treaty Follows a Closed Treaty 142 (i) Priority of Earlier Closed Treaties 142 (ii) Priority of the Universal Treaty 148 B. Closed Treaties Which Are Later in Time: The Problem of inter se Agreements 152 C. Priority of the 'More Favorable* Treaty 163 (i) Protection of Human Rights 163 (ii) Protection of the Environment 163 (iii) Protection of Intellectual Property Rights 164 (iv) Protection of Cultural Property 167 D. Priority of the 'More Effective' Treaty 168 (i) Treaties on the Recognition and Enforcement of Foreign Judgments and Arbitral Awards 168 (ii) Treaties on Dispute Settlement 168 (iii) Treaties on Judicial Cooperation Conflict between Closed Treaties 170 A. Conflict between Regional Treaties 170 (i) Regional Treaties Having the Same Scope 170 (ii) The Scope of One Treaty Is Special 171 (iii) Regional Treaties Whose Scopes Partially Overlap 172 B. Conflict between Regional and Bilateral /Sub-Regional Treaties 175 (i) The Regional Treaty Is Later in Time 175 (ii) Subsequent Bilateral / Sub-Regional Treaties: The Problem of inter se Agreements 181 (iii) Priority of the 'More Effective' Treaty Concluding Remarks Concerning Treaty Practice of States 186

6 CHAPTER FlVE OTHER SOURCES OF INTERNATIONAL LAW 189 I. General Principles of Law 189 n. Decisions of International Tribunals The Oscar Chinn Case European Commission of the Danube Case The Mavrommatis Palestine Concessions Case The Electricity Company of Sofia and Bulgaria Case 195 PARTTHREE THE PROCESS OF RESOLVING CONFLICTS 197 CHAPTER SlX DlFFERENT STAGES OF CONFLICT RESOLUTION 199 I. Ascertaining the Existence of a Conflict 199 II. Searching for Applicable Conventional Rules 204 in. Ascertaining the Intention of the Parties Not Specified in the Treaty Intention Expressed in the Course of travaux preparatoires Intention Expressed after the Adoption of the Treaty 208 IV. Resolving Conflicts in the Absence of Any Indications on the Intention of the Parties 210 V. Conclusions 212 CHAPTER SEVEN SPECIAL RULES ADVANCED FOR RESOLVING CONFLICTS BETWEEN CERTAIN TYPES OF TREATIES 213 I. The Principle of the 'More Favorable' Provision in the Field of Human Rights The Scope of the Principle Exceptions to the Principle 220 A. Discrimination 220 B. Interests of the Society The Effect of an Express Provision Limiting or Not Recognizing a Specific Right Guaranteed under a Prior Instrument The Impact of the Multiplicity of Control Organs Implications of the Principle for States 231 XI

7 H. The Principle of Cumulative Application of Instruments on Dispute Settlement Concurrent Instruments Relating to the Jurisdiction of the Same Body Concurrent Instruments Relating to the Jurisdiction of Different Bodies 236 A. The Existence of a Clause Regulating the Relationship between the Procedure Established by One Instrument and Other Procedures 236 B. The Absence of a Treaty Clause Regulating the Relationship between Concurrent Procedures for Dispute Settlement 238 HL The Principle of 'Maximum Effectiveness' in the Field of Private Law 240 IV. The Principle of the Priority of Treaties Relating to 'Special Matters' 244 CONCLUSIONS 249 BlBLIOGRAPHY 251 Xll