In the previous chapter, we examined how norms of international law may either accumulate or conflict. Before entering the discussion of how the different conflict situations set out in that chapter might be resolved, this chapter highlights the relatively exceptional nature of conflict, that is, at least, as compared to the absolute number of norms in existence. That conflict can in many cases be avoided is based, first, on the presumption against conflict and, second, on the process of treaty interpretation pursuant to which many apparent conflicts can be resolved. In addition, states should also be advised to engage in conflict prevention when they negotiate new norms.
Conflict of norms may, first of all, be avoided at the negotiation stage of new norms, that is, ex ante. Conflict may then be prevented by one norm explicitly stating that it derogates from, or is an exception to, another norm. One norm can also make an explicit reference to, or incorporate the conditions of, another norm. In those cases, the two norms simply accumulate and conflict is prevented from arising ex ante.
Conflict may further be avoided by drafting treaties more clearly (thereby avoiding especially inadvertent conflicts) or negotiating new treaties with other treaties in mind. As Jenks pointed out, when different treaties are negotiated by different people, negotiators are often tempted ‘to secure fuller satisfaction for their own views on debatable questions of detail at the price of conflict between different instruments and incoherence in the body of related instruments’.1 Here again, Jenks'
1 Wilfred Jenks, ‘Conflict of Law-Making Treaties’(1953) 30 BYIL 401 at 452.