Introduction

The idea behind this chapter is to discuss various ways in which the problem of treaty conflict has been addressed, against the background of the law of treaties and in light of a more generally theoretical approach to the law of treaties. More specific emanations of thought on treaty conflict will be reserved for later chapters; the present chapter aims to sketch a more general framework. One important conclusion will be that the law of treaties remains silent precisely when it concerns the most difficult treaty conflicts: these are conflicts involving treaties the parties to which are only partially overlapping (often labeled AB:AC conflicts: A has an engagement with B, and a conflicting one with C). In order to gain some understanding, the chapter will address the ways in which legal theory – jurisprudence – addresses normative conflicts; the insights this discussion yields will be further elaborated and subjected to closer scrutiny.

The thesis I develop in this chapter is that treaty conflicts tend to be fairly unproblematic when limited to coordination problems: two agreements on double taxation can easily be reconciled, in the normal course of events, as can two agreements on extradition. Things become far more difficult, however, when there is a clash of values, real or manufactured, underlying the different commitments. Where values clash, typically the political positions harden, resulting in the practical impossibility of finding a way out. As a result, the law, too, cannot decide in the abstract what to do: all that is left is to hope to find a modus vivendi, to find some way to accommodate incommensurable values.