Methods of resolving conflicts between treaties / / Seyed-Ali Sadat-Akhavi.

• VerfasserIn: Sadat-Akhavi, Ali,
• Place / Publishing House: Leiden ;, Boston : : Martinus Nijhoff Publishers,, [2003]
• Year of Publication: 2003
• Language: English
• Series: Graduate Institute of International and Development Studies ; 3.
• Physical Description: 1 online resource.

Despite the theoretical and practical importance of the question of conflict between treaties, little has been written on the subject. This monograph fills this gap by providing a detailed analysis of the main issues. The book is divided into three parts. The first deals with the definition of confl...

Table of Contents

• Intro
• Title Page
• Copyright Page
• Dedication
• Table of Contents
• INTRODUCTION
• PART ONE PRELIMINARY OBSERVATIONS
• CHAPTER ONE THE CONCEPT OF 'CONFLICT'
• I. Definition of Conflict
• II. Causes of Conflict
• 1. The Same Act Is Subject to Different Types of Norms
• 2. One Norm Requires an Act, While the Other Norm Requires or Permits a 'Contrary' Act
• 3. One Norm Prohibits a 'Necessary Precondition' of Another Norm
• 4. One Norm Prohibits a 'Necessary Consequence' of Another Norm
• III. Types of Conflict
• 1. 'Partial' and 'Total' Conflicts
• 2. 'Bipartite' and 'Multipartite' Conflicts
• 3. 'Supervening' and 'Constant' Conflicts
• IV. Schematic Representation of Conflicting Norms
• 1. Constituent Elements of the Diagrams
• 2. Diagrams Representing Conflicting Norms
• A. Identical subjects
• B. One subject is more general
• C. Overlapping Subjects
• D. Disjoint Subjects
• V. Summary
• CHAPTER TWO ASCERTAINING THE EXISTENCE OF CONFLICT: REAL AND FALSE CONFLICTS
• I. Interpretation of Norms
• 1. Interpretation as a Means of Ascertaining the Existence of a Conflict
• 2. Some Problems of the Interpretation of Norms
• A. Norms Having an Implied' Meaning
• B. The Meaning of the Term 'Right'
• II. Reconciliation of Norms
• 1. The Concept of 'Reconciliation'
• 2. Some Instances of Reconcilable Norms
• A. Concurrent Permissive Norms Can Never Conflict
• B. Two Norms May Have 'Canceling' Effect without Being Conflicting
• C. One Norm May Relate to the 'Manner' in Which the Other Norm Must Be Performed
• III. Summary
• PART TWO RULES OF INTERNATIONAL LAW FOR RESOLVING CONFLICTS
• CHAPTER THREE CONVENTIONAL LAW
• I. The System of the Vienna Convention on the Law of Treaties
• 1. One Treaty Affects the 'Existence' of the Other Treaty
• A. Termination of the Earlier Treaty.
• B. One Treaty Invalidates the Other Treaty
• 2. Both Treaties Are in Force
• A. Amendment of Treaties
• B. Modification of Treaties
• C. Successive Treaties Relating to the Same Subject-Matter
• (i) The Pre-Eminence of the Charter of the United Nations
• (ii) Conflict-Resolving Clauses
• (iii) Rules for Resolving Conflicts
• (a) The Later Treaty Includes All the Parties to the Earlier Treaty
• (b) The Later Treaty Does Not Include All the Parties to the Earlier Treaty
• (c) The Question of the Validity of the Later Treaty
• (iv) The Critiques of the Vienna Convention
• (a) It Does Not Address the Question of Conflicting Obligations towards Different States
• (b) Problem of Determining the 'Later' Treaty
• (c) It Does Not Take Account of the Position of Regional Treaties
• (d) It Does Not Take Account of Treaties Containing Obligations erga omnes
• (e) The Ambiguity of the Term Treaty' in the Context of Article 30
• II. Specific Treaty Clauses Aiming at Resolving Conflicts
• 1. Definition of Conflict-Resolving Clauses
• 2. Types of Conflict-Resolving Clauses
• A. Clauses Giving Priority to the Treaty in Which They Are Incorporated
• (i) Priority over Existing Treaties
• (ii) Priority over Future Treaties
• (iii) Priority over Both Existing and Future Treaties
• B. Clauses Giving Priority to Other Treaties
• (i) Priority of Existing Treaties
• (ii) Priority of Future Treaties
• (iii) Priority of Both Existing and Future Treaties
• 3. The Problem of Concurrence between Conflict-Resolving Clauses
• CHAPTER FOUR CUSTOMARY INTERNATIONAL LAW
• I. State Practice as Reflected in Decisions of National Courts and Governmental Documents
• 1. Priority of the Later Treaty over the Earlier One
• 2. Priority of the Special Treaty over the General One
• 3. The Hierarchy between Norms.
• 4. Priority of the 'Principal' Treaty over the Treaty 'Implementing' It
• 5. Denunciation of Existing Treaties as Means of Avoiding Conflict
• 6. Priority of the 'More Favorable Provision' in the Field of the Protection of Human Rights
• 7. The Principle of 'Legislative Intent'
• 8. The Principle of 'Maximum Effectiveness'
• II. Treaty Practice of States
• 1. Conflict between Universal Treaties
• A. Universal Treaties Having the Same Scope
• (i) Priority of the Later Treaty
• (ii) Priority of the Earlier Treaty
• B. The Scope of One Treaty Is Special
• (i) The Special Treaty Is Later in Time
• (ii) The General Treaty Is Later in Time
• C. Universal Treaties Which Are Partially Overlapping in Scope
• (i) Priority of Earlier Treaties
• (ii) Priority of the Later Treaty
• 2. Conflict between Universal and Closed Treaties
• A. A Universal Treaty Follows a Closed Treaty
• (i) Priority of Earlier Closed Treaties
• (ii) Priority of the Universal Treaty
• B. Closed Treaties Which Are Later in Time: The Problem of inter se Agreements
• C. Priority of the 'More Favorable' Treaty
• (i) Protection of Human Rights
• (ii) Protection of the Environment
• (iii) Protection of Intellectual Property Rights
• (iv) Protection of Cultural Property
• D. Priority of the 'More Effective' Treaty
• (i) Treaties on the Recognition and Enforcement of Foreign Judgments and Arbitral Awards
• (ii) Treaties on Dispute Settlement
• (iii) Treaties on Judicial Cooperation
• 3. Conflict between Closed Treaties
• A. Conflict between Regional Treaties
• (i) Regional Treaties Having the Same Scope
• (ii) The Scope of One Treaty Is Special
• (iii) Regional Treaties Whose Scopes Partially Overlap
• B. Conflict between Regional and Bilateral /Sub-Regional Treaties
• (i) The Regional Treaty Is Later in Time.
• (ii) Subsequent Bilateral / Sub-Regional Treaties: The Problem of inter se Agreements
• (iii) Priority of the 'More Effective' Treaty
• 4. Concluding Remarks Concerning Treaty Practice of States
• CHAPTER FIVE OTHER SOURCES OF INTERNATIONAL LAW
• I. General Principles of Law
• II. Decisions of International Tribunals
• 1. The Oscar Chinn Case
• 2. European Commission of the Danube Case
• 3. The Mavrommatis Palestine Concessions Case
• 4. The Electricity Company of Sofia and Bulgaria Case
• PART THREE THE PROCESS OF RESOLVING CONFLICTS
• CHAPTER SIX DIFFERENT STAGES OF CONFLICT RESOLUTION
• I. Ascertaining the Existence of a Conflict
• II. Searching for Applicable Conventional Rules
• III. Ascertaining the Intention of the Parties Not Specified in the Treaty
• 1. Intention Expressed in the Course of travaux préparatoires
• 2. Intention Expressed after the Adoption of the Treaty
• IV. Resolving Conflicts in the Absence of Any Indications on the Intention of the Parties
• V. Conclusions
• CHAPTER SEVEN SPECIAL RULES ADVANCED FOR RESOLVING CONFLICTS BETWEEN CERTAIN TYPES OF TREATIES
• I. The Principle of the 'More Favorable' Provision in the Field of Human Rights
• 1. The Scope of the Principle
• 2. Exceptions to the Principle
• A. Discrimination
• B. Interests of the Society
• 3. The Effect of an Express Provision Limiting or Not Recognizing a Specific Right Guaranteed under a Prior Instrument
• 4. The Impact of the Multiplicity of Control Organs
• 5. Implications of the Principle for States
• II. The Principle of Cumulative Application of Instruments on Dispute Settlement
• 1. Concurrent Instruments Relating to the Jurisdiction of the Same Body
• 2. Concurrent Instruments Relating to the Jurisdiction of Different Bodies.
• A. The Existence of a Clause Regulating the Relationship between the Procedure Established by One Instrument and Other Procedures
• B. The Absence of a Treaty Clause Regulating the Relationship between Concurrent Procedures for Dispute Settlement
• III. The Principle of 'Maximum Effectiveness' in the Field of Private Law
• IV. The Principle of the Priority of Treaties Relating to 'Special Matters'
• CONCLUSIONS
• BIBLIOGRAPHY.