Pulkovski Dirk. The Law and Politics of International Regime Conflict

Oxford University Press, 2014. — 402 p. — ISBN 978–0–19–968933–0.The present study by Dirk Pulkowski is characterized simultaneously by the openness of its field of analysis and the rigorous intellectual coherence with which the author proceeds. While the author in no way makes light of the conclusions of the Commission, it is true that Dirk Pulkowski does not, explicitly, attribute a central role to the concept of the legal order as applied to international law (although such a notion is certainly implicit in his approach). The analysis focuses instead on multiple international legal subsystems, which he calls ‘regimes’, defined as institutionalized arrangements in different issue areas that possess their own norms and procedures. He notes that these regimes, obeying their own distinct goals, if not values, are likely to compete or even conflict, thus creating politically and socially challenging dilemmas for states that are subject to them and for the adjudicative bodies that must apply their rules.
Dirk Pulkowski attaches particular importance to a systematic examination of the customary international law rules of interpretation, a large part of which has been codified in the Vienna Convention on the Law of Treaties. Moreover, describing regime conflict as a form of ‘horizontal jurisdictional conflict’, the author highlights legal principles — notably the principle of ‘comparative impairment’, borrowed from conflict of laws theory — that permit horizontal coordination by assigning priority to the rules of one regime over those of another regime. And quite rightly so: his attention to legal interpretation and to various techniques that allow achieving a degree of what he metaphorically calls ‘communicative compatibility’ of competing regimes leads the author to approach international law as a language, whose vocabulary and syntactic structure can articulate, at least in part, the normative and institutional components that constitute the legal order.
This remarkable book will undoubtedly contribute (at least this is the sincere wish that I can express here) to making some theorists of ‘legal pluralism’ realize that one must also study law en situation — that is to say, investigate how law functions in specific instances within a clearly delimited field of analysis — rather than remaining at an almost stratospheric level of generality; or else one risks reinventing the wheel all over again. Conversely, Dirk Pulkowski’s excellent work will remind lawyers that law is already equipped with rules and techniques for achieving harmonization or, at the least, compatibility of rules with seemingly contradictory goals and content. In doing so, the study recalls at the same time the inherent limitations and only relative effectiveness of these rules and techniques.