Reconceptualizing Norm Conflict in International Law
Editor’s Note: This post is drawn from the author’s article-length work, “Reconceptualizing Norm Conflict in International Law,” recently published in The Asian Journal of International Law.
Representative of the traditional approach to defining “norm conflict” under international law, the International Law Commission (ILC) Fragmentation Report defines “norm conflict” as a situation where two norms “point to different directions” or where “two rules or principles suggest different ways of dealing with a problem.”
Under this traditional approach, norms are understood to be pointing in “different directions” when the “fundamental functions” of these norms differ as a matter of deontic logic. These “functions” of norms may include: to require (or “command”) certain actions; to disallow (or “prohibit”) certain actions; to allow certain actions (“permit”); or to not require certain actions (“exempt”).
Accordingly, a “norm conflict” arises when one norm commands a certain action but another norm prohibits the same action (sometimes referred to as the “strict” definition of norm conflict, encompassing a “necessary conflict” or “contrary conflict”). A norm conflict also arises when one norm prohibits a certain action, while another norm permits it or when one norm commands a certain action, while another norm exempts it (sometimes referred to as the “broad” definition of norm conflict, encompassing a “potential conflict” or a “contradictory conflict”).
The traditional approach relies solely on the functions of the norms expressed in their texts to define norm conflict. This is, however, inadequate to describe the mental experience of (in)compatibility between two norms in their contexts, which is the real basis for our recognition of norm conflict in practice, as will be illustrated below.
Norm Conflict in the Jus ad Bellum and Jus in Bello
The jus ad bellum prohibits the use of force in international relations against the territorial integrity or political independence of any State or in any other manner inconsistent with the purposes of the United Nations. Yet the jus in bello commands an occupying power, even one that violates the jus ad bellum, to take all the measures in its power to restore and ensure, as far as possible, public order and safety. The latter may call for positive actions that could involve the use of force implicating the former.
Under deontic logic, the prohibitive norms under the jus ad bellum would conflict with the commanding norms under the jus in bello. In practice, however, few would recognize that such a conflict exists. This mismatch suggests that our actual recognition of a “strict conflict” between two norms is not based on their deontological incompatibility—the fact that their normative functions according to their texts cannot be fulfilled simultaneously—but on the experience of their incompatibility based on their contexts. Put differently, the fact that two legal norms cannot, without logical contradiction, be complied with simultaneously according to their texts (triggering a strict conflict as defined under the traditional approach) does not mean these norms should not, as a policy matter, coexist and be co-applied, in view of their contexts.
In the example above, by complying with the jus in bello norm of using force to maintain public order in occupied territories, an aggressor would necessarily violate the prohibition on the use of force under the jus ad bellum. Nevertheless, the two norms can meaningfully, and should as a matter of policy, coexist and be co-applied because they pursue distinct yet compatible goals. The purpose of the jus ad bellum is to prohibit political violence in international relations—subject to justified exceptions—and the goal of the jus in bello is to manage political violence, whether or not that violence is justified. These are distinct but compatible aims, which render the norms that implement them, despite their contrary directions, experientially compatible.
This experiential compatibility is reflected in the complementary and incremental nature of the two norms. A State that occupies another territory without a valid justification or defence, and which uses force to maintain public order and safety in the occupied territory in compliance with the jus in bello, violates the jus ad bellum. But if the same State fails to maintain public order and safety by not using the necessary force for that purpose in the occupied territory, it commits a “double illegality” by also violating the jus in bello. Conversely, a State that occupies another territory with a valid justification or defence but fails to maintain public order and safety by not using the necessary force for that purpose in the occupied territory, violates the jus in bello. If the same State extends its occupation beyond the extent allowed by its justification or defence, it commits a “double illegality” by also violating jus ad bellum.
The inadequacy of relying solely on the deontological incompatibility between two norms can also be illustrated by reference to the broad definition of norm conflict, involving “potential” or “contradictory” conflicts. Looking to the jus ad bellum and jus in bello again, in some respects, jus ad bellum norms expressly prohibit certain conduct that is permitted by the jus in bello. For instance, the jus ad bellum prohibits the use of force in international relations against the territorial integrity or political independence of any State or in any other manner inconsistent with the purposes of the United Nations. Yet the jus in bello precisely permits a warring party to use force, even if such use of force violates the jus ad bellum. This combination of prohibitive norms under the jus ad bellum and permissive norms under the jus in bello would create a norm conflict under the traditional approach.
However, as with strict norm conflicts, these two norms are scarcely recognized to be in conflict. Even though an aggressor, in exercising the permission (or the freedom of non-prohibition) to use force under the jus in bello would breach the jus ad bellum, and this permission to use force under the jus in bello would be frustrated when the potential aggressor abstains from using force to observe the jus ad bellum, the two norms can meaningfully, and should as a policy matter, coexist and be co-applied. This is because they pursue distinct, yet compatible, goals. As noted above, the goal of the jus ad bellum is to prohibit political violence in international relations, subject to justified exceptions, and the goal of the jus in bello is to manage political violence, whether or not that violence is justified. These are distinct but compatible aims, which render the norms that implement them, despite their contradictory directions, experientially compatible.
Concluding Thoughts
The traditional approach to defining norm conflict in international law treats this, in effect, as a mechanical exercise that bypasses the experience of (in)compatibility. This paves the way to conflation with its conceptual counterpart, the resolution of norm conflict. The latter is equally prone to being treated as a mechanical exercise that bypasses the relationship between different norms inferable through certain legal techniques.
My article interrogates what triggers the mental experience that two norms should not coexist and be co-applied to discern the contextual configurations that lead to different mental experiences of (in)compatibility between norms. This, in turn, generates a new typology of norm conflicts that call for different treatments.
The article also examines how the intended relationship between norms may be inferred through certain legal techniques to resolve norm conflicts. These expose the hegemonic potential of “resolving” certain “norm conflicts,” traditionally conceived, using legal techniques to conform one norm to another without referring to the intended relationship between them. By reintegrating the experiential dimension into the definition of norm conflict and reintegrating the intentional dimension into the resolution of norm conflict, the article then de-conflates the two concepts.
My longer article is an elaboration of the methodological lessons for general international law derived from a more specific, book-length study on The Use of Force against Individuals in War under International Law – a Social Ontological Approach, which provides a fuller background to the article for interested readers.
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Photo credit: U.S. Army photo by Sgt. Xavier Legarreta
