Addressing Norm Conflicts in a Fragmented Legal System: The Doctrine of Lex Specialis

Abstract

AbstractThe increased fragmentation of international law has been accompanied by a more problematic phenomenon: institutional fragmentation that has strengthened the role of specialised regimes (e. g., WTO, EU, human rights and environmental regimes) within the international legal system. "The emergence of seemingly independent subregimes has given rise to a number of legal concerns – among these is the existence of normative conflicts between regimes." In a recent report by the Chairman of the ILC Study Group on Fragmentation of International Law, Martti Koskenniemi, dealt with the role of the lex specialis maxim as a means of addressing the relation between selfcontained regimes and general international law. This article argues that an application of lex specialis, although widely accepted, is impeded by its conceptual vagueness. Lex specialis may be well-suited to resolve certain types of normative conflicts, such as conflicts within sub-regimes, which may be viewed as a more traditional manifestation of normative conflicts. The fragmentation of international law, however, has also created new types of conflicts, namely those between different, seemingly independent normative orders. The article suggests that the lex specialis maxim is a less-suitable approach to normative conflicts between such unrelated normative orders. In a fragmented legal system such as that of international law, these types of conflicts may, accordingly, prove a particular challenge.