Cleaved International Law through the indeterminacy of Tertiary Rules

Abstract

Without much of the outside world noticing, a debate has raged over the past 15 years within the international law community over the nature of our legal order – whether it is fundamentally unified or fragmented. Most, if not all, participants in this debate see it entirely from a mutually exclusive, dualist perspective. However, all seem to agree that the various branches of international law sometimes conflict. One of the many examples where branches conflict includes the Chile-EU swordfish dispute from 2000, in which Chile claimed that EU fisherman violated norms within the context of Law of the Sea, and the EU claimed that Chile violated the norms of WTO law by prohibiting EU swordfish. Those in the unified camp tend to downplay the conflict by pointing to general international law as bringing coherence to the field, especially during interpretation and adjudication through reliance on conflict rules and the Vienna Convention on the Law of Treaties (VCLT). This paper critiques that notion by pointing out the fundamental indeterminacy of conflict rules and interpretation under the VCLT. This paper is part of a larger project to overcome the dualism referred to above by emphasizing how conflicting elements and complementary elements simultaneously can be found within various branch pairings. If forced to choose one word to capture the essence of the dynamic within international law that this larger project studies, it would be “cleaving,” which concurrently can mean “to join together” and “to break apart” – hence the reference in the title of this paper to “cleaved international law.” This paper does not address cleaved international law per se, but rather aims to argue that the international constitutional order that those in the unified camp rely on is fundamentally flawed. Other parts of the larger project equally aim to argue that the international legal pluralism that those in the fragmentation camp rely on also is fundamentally flawed, thus making room for a new theory that helps bridge the gap and push the discourse beyond the unity-fragmentation quagmire.