Conflicts Over “Conflict”: Preventing Fragmentation of International Law.

Abstract

Public international law does not envisage a single source of law; nor does it contemplate a single supreme law-creating body. Conflict between various norms, whatever be their nature, is therefore an inevitability. Such conflicts are one of the many causes that affect the ability of the legal system to maintain stability and accountability. Resolving such conflicts is essential to ensure that any system does not fall under its own weight. The importance of resolving conflicts is amplified in the context of the public international law regime, which consists of a number of sub-systems, thereby resulting in a higher probability of conflicts. Equally important to the issue of resolving conflict is identifying when the solution is to be applied. After all, what good is any “ultimate answer” without identifying the “ultimate question”! In other words, one must first identify the existence of a conflict to resolve it. Very few publicists of international repute have, however, dealt with this issue, in particular, in sufficient substantive detail. Despite the limited number of opinions, there is, unfortunately, no consensus on this topic. The present comment portrays the author’s view on this issue. In this comment, the question has been analyzed with a very simple policy objective: avoiding fragmentation of international law. The author’s views are presented by way of critically examining the opinion of Joost Pauwelyn, a noted scholar in this field, who has most recently dealt with this issue in a comprehensive manner. Moulded into this crtique are three hypothetical scenarios that would allow the reader to grasp the significance of the question.