CYIL vol. 10 (2019)

CYIL 10 ȍ2019Ȏ THE INTERPLAY OF FIELDS OF INTERNATIONAL LAW IN CASE OF FOREIGN … between conflicting rules are not present in our case, an effort to avoid norm conflict should be made through interpretation of interacting norms. 46 This goes in conformity with the principle of systematic interpretation and Art. 31 par. 3 letter c) of the VCLT. And this is probably the approach which was adopted by International Court of Justice in the Nuclear Weapons advisory opinion. 47 Although the Court made reference to the notion of lex specialis (to which this paper refers in the following step as to conflict solution method), it nevertheless interpreted the content of the arbitrary deprivation of life (relating to the human right to life) by referring to IHL, without setting aside IHRL or IHL norm. Indeed, “ a text emanating from a Government must, in principle, be interpreted as producing and intended to produce effects in accordance with existing law and not in violation of it.” 48 Therefore, as the Working Group of International Law Commission called it, there is a strong presumption against normative conflict in international law. 49 In situations where conflict avoidance efforts leave the interpreter with a norm conflict present (interpretation cannot resolve apparent genuine conflicts), then, as a second step, methods for its solution have to be utilized. 50 This approach would correspond to the understanding of treaty conflict utilised by J. Klabbers as “ a conflict between provisions of different treaties which cannot be resolved through such mechanisms as ‘reconciling interpretation ’ (…). ” 51 The literature deals with several methods for norm conflict solution such as the notion of lex posterior , the notion of peremptory norms ( ius cogens ), both reflected in VCLT (Art. 53 and Art. 30), and the notion of lex specialis , accepted as general principle of law. 52 However, the relationship of the latter, attracting the most attention, to other methods of norm conflict solution is not clear. 53 It should be also noted that some authors do not treat lex specialis as a method for solution of norms conflicts but rather as a method for conflict avoidance. 54 M. Milanović aptly explains this view by reference to the Nuclear Weapons advisory opinion where the Court used a norm of IHL to interpret a norm of IHRL. 55 To make it more complicated, the ILC Working Group understands the notion of lex specialis both as technique of interpretation and conflict resolution. 56 46 Borgen, p. 458-459; Max Planck Encyclopedia of Public International Law. Treaties, Conflicts between [online]. opil.ouplaw.org, December 2010 [accessed on March 2019]. Available at < https://opil.ouplaw.com/view/10.1093/ law:epil/9780199231690/law-9780199231690-e1485 >, par. 20. 47 See Legality of the Threat or Use of Nuclear Weapons , ICJ, Advisory Opinion (1996), par. 25. 48 Case Concerning the Right of Passage over Indian Territories (Portugal v. India), ICJ, Preliminary Objections (1957), p. 21. 49 International Law Commission (58th Session), Report of the Study Group of the International Law Commission (Fragmentationof International Law , UN Doc. A/CN.4/L.682, 2006, par. 37. 50 Borgen, p. 461. 51 KLABBERS, J. Beyond the Vienna Convention: Conflicting Treaty Provisions. In: CANNIZZARO, E. The Law of Treaties Beyond the Vienna Convention , Oxford University Press, 2011 52 KOSKENNIEMI, M. Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law. International Law Commission, 58 th Session, UN Doc A/CN.4/L.682, p. 116-117. However, see also convincing arguments why lex specialis should be treated rather as a rule of norm conflict avoidance at Milanović, p. 475-6. 53 Max Planck Encyclopedia of Public International Law. Lex Specialis [online]. opil.ouplaw.org, November 2015 [accessed on March 2019]. Available at < https://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law- 9780199231690-e2171 >, par. 10. 54 Koskenniemi, p. 4. 55 Milanović, p. 475-476. 56 Conclusions of the work of the Study Group on the Fragmentation of International Law, at par. 5.

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