Tuomas Kuokkanen 1
2 Multilateral environmental agreements and relationships
2.4 Relationships and conflicts in general
International law has various methods and techniques for dealing with the relation-ships amongst international agreements. To begin with, there is a general assumption that states are acting in good faith and aiming for a consistent and rational approach rather than for an approach that is inconsistent and irrational.60 However, as Jenks put it, ‘the presumption against conflict may eliminate certain potential conflicts; it cannot eliminate the problem of conflict’.61 For this reason, there is a need either to include express provisions on treaty relationships, or to interpret, according to inter-national law, various relationships and possible conflicts between interinter-national agree-ments.
59 Boyle, ‘Further Development’, supra note 52, at 58.
60 See Lassa Oppenheim, International Law, vol. I (7th ed. by Lauterpachts, 1948) at 858–859:
It is taken for granted that the contracting parties intend something reasonable, something adequate to the purpose of the treaty; and something not inconsistent with generally recognized principles of International Law, nor with generally recognized principles of International Law, nor with previous treaty obligations towards third States. If, therefore, the meaning of a stipulation is ambiguous, the reasonable meaning is to preferred to the unreasonable, the more reasonable to the less reasonable, …the consistent meaning to the meaning inconsistent with generally recognized principles of International Law and with previous treaty obligations towards third States.
Quoted in Wilfred Jenks, ‘The Conflict of Law-Making Treaties’, 13 The British Year Book of Interna-tional Law (1953) 401–453 at 428.
61 Ibid. at 429. See also at 402:
The international legislative process has many imperfections, some of which can be eliminated by forethought and prudence, whereas others, being inherent in the nature of the process, give rise to problems for which ap-propriate solutions must be found on the assumption that the imperfection itself cannot be whole eliminated.
…It is taken for granted that the contracting parties intend something reasonable, something adequate to the purpose of the treaty; and something not inconsistent with generally recognized principles of International Law, nor with generally recognized principles of International Law, nor with previous treaty obligations towards third States. If, therefore, the meaning of a stipulation is ambiguous, the reasonable meaning is to preferred to the unreasonable, the more reasonable to the less reasonable,…the consistent meaning to the meaning inconsistent with generally recognized principles of International Law and with previous treaty obligations towards third States.
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Relationships between Multilateral Environmental Agreements and Other Agreements Aust underlines that, when drafting the final clauses of a multilateral treaty, it is important ‘to consider whether anything might be said about the relationship be-tween it and existing or future treaties dealing with the same subject matter’.62 He lists recent examples of such express provisions: the treaty prevails over all other past and future treaties; the treaty is subordinate to an earlier one; the parties shall not enter into later inconsistent treaties; an existing treaty shall not be affected; for parties to the treaty it prevails over earlier treaties; compatible supplementary treaties are permitted; and inclusion of comprehensive provisions, the best of both worlds and neutral provisions.63
Even though an international agreement would not include any express provisions on treaty relationships, a professional toolbox for international law is available. The study group of the International Law Group reminded us that international law is not a random collection of norms but that there are ‘meaningful relationships be-tween them’. The group noted norms may exist at ‘higher and lower hierarchical levels, their formulations may involve greater or lesser generality and specificity and their validity may date back to earlier or later in time’.64
With regard to hierarchy in international law, one can first refer to peremptory norms of general international law (jus cogens) from which ‘no derogation is permitted’,65 and to Article 103 of the United Nations Charter66 according to which the Charter will prevail in the event of a conflict between obligations under the Charter and under any other obligations.67 As to conflicts between successive norms, the residual norm of international law is provided in Article 30 of the Vienna Convention on the Law of Treaties,68 according to which a later treaty supersedes an earlier treaty (lex posterior derogat legi priori).
62 Anthony Aust, Modern Treaty Law and Practice (2nd ed., Cambridge University Press, 2007) at 216. He reminds us that, essentially, the issue is about ‘which obligations have priority’.
63 Ibid. at 219–227. See also Jenks, ‘The Conflict of Law-Making Treaties’, supra note 60, at 436–450.
64 Aust, Modern Treaty Law, supra note 62, at 263.
65 See Art. 53 of the Vienna Convention on the Law of Treaties (Vienna, 22 May 1969, in force 27 January 1980, 1155 United Nations Treaty Series 331):
A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. For the purposes of the present Convention, a peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no deroga-tion is permitted and which can be modified only by a subsequent norm of general internaderoga-tional law having the same character.
66 Charter of the United Nations (26 June 1945, available at <http://www.un.org/en/documents/charter/
index.shtml>.
67 See Art. 103 of the Charter: ‘In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under present Charter shall prevail’.
68 The Vienna Convention on the Law of Treaties has been in force since 27 January 1980 and has 111 par-ties (as of 25 July 2012). Its provisions arguably reflect customary international law. See, for instance, the Gabčíkovo-Nagymaros Project case in which the Court stated: ‘[The Court] needs only to be mindful of the fact that it has several times had occasion to hold that some of the rules laid down in that Convention might be considered as a codification of existing customary law’ (I.C.J. Reports 1997, 38, para. 46).
31 Tuomas Kuokkanen In conflicts between special and general law, the generally accepted method is that priority should be given to the treaty that is more specific (lex specialis derogate legi generali). Moreover, Article 31(3)(c) of the Vienna Convention provides that ‘any relevant rules of international law applicable in the relations between the parties’ shall be taken into account, together with the context. Yet, it should be recalled that the applicability of the above principles will depend on context; and that none of them have absolute meanings.69
3 Conclusions
The relationships between multilateral environmental agreements and other agree-ments provide important managerial tasks within contemporary international envi-ronmental law-making. Indeed, it is important for lawyers and envienvi-ronmental poli-cy-makers to understand how specialized environmental, and other, regimes operate and could interact.70
The present paper has examined the relationships between international agreements with a special focus on treaty regimes. First, with regard to environmental regimes as such, there is a close relationship between a framework agreement and protocols and other instruments relating thereto. This is understandable as the dynamic develop-ment of the secondary instrudevelop-ments under the framework agreedevelop-ment is the crucial purpose of the environmental regimes. Second, there is usually a cooperative relation-ship between environmental regimes. In certain instances, however, there could be inconsistent or even conflicting approaches. Third, it is important to acknowledge boundaries and relationships71 between environmental and other regimes. In prac-tice, however, conflicts between such regimes have been rare.72 Fourth, the general principles and methods of international law are available in case of possible conflicts between international agreements.
Overall, the issue appears to boil down to striking a balance between specialization and coherence.73 Indeed, specific environmental issues require contextual
problem-69 See Jenks, ‘The Conflict of Law-Making Treaties’, supra note 60, at 453.
70 In his seminal article on the conflict of law-making treaties, Wilfred Jenks noted in 1953 that the ‘world community still has no legislature and it seems improbable that anything comparable to a national legis-lature can be developed on a world scale in the foreseeable future’. See supra note 60, at 402.
71 See Margaret A. Young, ‘Introduction: the Productive Friction between Regimes’ in Young (ed.), Regime Interaction in International Law, supra note 22, 1–19, at 1.
72 See the Report of the Study Group of the International Law Commission, supra note 6, at 248–249: ‘One principal conclusion of this report has been that the emergence of special treaty-regimes (which should not be called “self-contained”) has not seriously undermined legal security, predictability or the equality of legal subjects’.
73 See Nele Matz-Lück, ‘Norm Interpretation across International Regimes: Competences and Legitimacy’, in Young (ed.), Regime Interaction in International Law, supra note 22, 201–234, at 205–209.
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Relationships between Multilateral Environmental Agreements and Other Agreements -solving through environmental regulations and regimes. At the same time, it is important to seek to preserve coherence74 of the legal system by enhancing synergies and by avoiding ineffective fragmentation.
74 See United Nations Secretary-General’s High-level Panel on Global Sustainability, Resilient People, Resilient Planet: A Future worth Choosing (United Nations, 2012), available at <http://www.un.org/gsp/report>
(visited 11 March 2012), para 220: ‘Accountability and coherence at the international level are also indis-pensible for advancing sustainable development’.