Reconceptualizing Norm Conflict in International Law

Abstract

This article reconceptualizes norm conflict in international law by uncovering the experiential dimension of its definition and the intentional dimension of its resolution that has been missing from traditional accounts. The article locates the basis of recognizing norm conflict in the experienced sense of incompatibility between norms in view of their contexts rather than in the predesignated constellation of norms with contrary or contradictory functions according to their texts. Concomitantly, it argues that the justification for using certain legal techniques to resolve norm conflicts lies in the intended relationship deducible only between those norms that share the same regulatory purpose rather than between norms merely applying to the same factual situation. This reconceptualization generates a new typology of norm conflicts in light of the norms’ end goals and the means they provide to achieve them: “Ends Conflict”, “Means Conflict”, and “Unexperienced Conflict”, and suggests apposite ways to tackle them.