From the beginning of the twenty-first century the international community started addressing the issue of fragmentation of international law. In 2000, the International Law Commission (ILC) decided to include the topic “[r]isks ensuing from the fragmentation of international law” into its long-term programme of work. This initiative raises some basic questions: is international law a fragmented system? If it is so, what is the problem with the fragmentation? and how can the problem be resolved? This dissertation mainly revolves around these three major issues. It assumes that today’s fragmented international law is part of historical evolution or process.
In contemporary times, the term ‘fragmentation’ is commonly used to refer to the slicing up of international law ‘into regional or functional regimes that cater for special audiences with special interests and ethos’. The most notable functional regimes are international trade law, environmental law, human rights law, humanitarian law, law of the sea and so on – when there is a collision between these regimes – than the conflict of norms becomes an unavoidable consequence – because each regime seeks favorable treatment towards its own. The absence of normative and institutional hierarchy in international law means that the evolution of such regimes is perceived by some as posing a threat to the coherence, effectiveness and predictability of international law. Others see these regimes as contributing to the development of international law.
To respond to the problem of fragmentation, the ILC examined the regimes in detail and tentatively concluded that these specialized legal regimes are merely informal labels with no normative value per se – hence, it viewed that they are all within or part of broader territorial domain of general international law – and codified some of existing conflict resolving techniques to solve the problem of conflict of norms. However, the proposed techniques solve the conflict of norms only within regimes but not across regimes. The question remains as to how to solve the norm conflict across regimes?
Table of Contents
I. INTRODUCTION
1. BRIEF DESCRIPTION OF THE STUDY
2. OBJECTIVE OF THE STUDY
3. SCOPE OF THE STUDY
4. RESEARCH QUESTIONS
5. HYPOTHESIS
6. RESEARCH METHODS
7. SCHEME OF THE STUDY
II. A FRAGMENTED INTERNATIONAL LAW
1. INTERNATIONAL RELATIONS AND INTERNATIONAL LAW
2. NATURAL LAW
3. SECULAR LAW
4. EUROPEAN INTERNATIONAL LAW
5. UNIVERSAL INTERNATIONAL LAW
5.1. Horizontal Expansion of States
5.2. Diversification of Courts and Tribunals
5.3. Growing Number of International/Transnational/ Supranational Organizations
5.4. Increasing Number of Subjects of International Law
5.5. Growing Density of International Law
5.6. Application of International Law in Municipal Sphere
5.7. Emergence of Globalization
6. FRAGMENTED INTERNATIONAL LAW
III. CONFLICT OF NORMS
1. MEANING OF NORM
2. DEFINITION OF CONFLICT
2.1. Strict/Narrow Definition
2.2. Wider/Broader Definition
3. REASONS FOR THE CONFLICT OF NORMS
3.1. Decentralized Global Law-Making
3.2. Law Changes over Time
3.3. Domestic Factors
3.4. Law of Co-existence to Co-operation
3.5. Diversified Global Problems
3.6. Emergence of jus cogens and Obligations erga omnes
3.7. Increased Reliance on Soft Law
3.8. Decentralized Global Decision-Making
4. PROBLEMS OF CONFLICT OF NORMS
4.1. Institutional Conflicts
a. Conflict of Jurisdiction
b. Forum Shopping
c. Conflict of Jurisprudence
4.2. Substantial Conflict
a. Conflict within General Law
b. Conflict between General and Special Law
c. Conflict between Special Laws
i. Trade and Environment
ii. Trade and Human Rights
iii. Human Rights and Humanitarian Law
5. DIFFERENT LEVELS IN WHICH CONFLICT OF NORMS OCCUR
5.1. Vertical Conflict between National and International Law
5.2. Vertical Conflict between Regional and International Law
5.3. Horizontal Conflict between Regimes of International Law
IV. RESOLVING CONFLICT OF NORMS
1. INTEGRATION OF REGIMES
1.1. Modes of Integration
1.2. Reasons of Integration
a. Pauwelyn’s Argument on Integration
b. Trachtman’s Argument on Integration
c. Chimni’s Argument on Integration
1.3. Different Levels in which Integration Occur
a. Integration by Unilateral/Domestic State Action
b. Integration by Bilateral/Regional Action
c. Integration by International Action
2. HIERARCHY OF NORMS
2.1. There is a Hierarchy of Norms
a. Conflict Resolving Techniques
i. Lex superior derogate legi inferiori
ii. Lex posterior derogate legi priori
iii. Lex specialis derogate legi generali
iv. Hierarchy of Sources
v. Systemic Integration through Article 31(3)(c) VCLT
b. Conflict Avoidance Techniques
i. Conflict Clause
ii. Treaty Interpretation
iii. State Responsibility
2.2. There is no Hierarchy of Norms
3. ILC STUDY ON FRAGMENTATION
4. THEORETICAL WAY FOR CONFLICT RESOLUTION
5. SUGGESTIONS TO RESOLVE CONFLICT RESOLUTION
V. CONCLUSION
Objective & Themes
This dissertation investigates the phenomenon of the fragmentation of international law, questioning whether the contemporary international legal system is truly fragmented, identifying the historical reasons for this development, analyzing the resulting conflict of norms between specialized legal regimes, and proposing practically workable solutions, particularly considering the implications for developing countries.
- Historical evolution of international law and its fragmentation.
- Analysis of institutional and substantial conflicts between international legal regimes.
- Critique of existing conflict-resolving techniques like lex specialis and systemic integration.
- Impact of fragmented international law on the interests of developing countries.
- Theoretical and practical pathways for the harmonization of international legal systems.
Auszug aus dem Buch
1. BRIEF DESCRIPTION OF THE STUDY
From the beginning of the twenty-first century the international community started addressing the issue of fragmentation of international law. In 2000, the International Law Commission (ILC) decided to include the topic “[r]isks ensuing from the fragmentation of international law” into its long-term programme of work. This initiative raises some basic questions: is international law a fragmented system? If it is so, what is the problem with the fragmentation? and how can the problem be resolved? This dissertation mainly revolves around these three major issues. It assumes that today’s fragmented international law is part of historical evolution or process.
In contemporary times, the term ‘fragmentation’ is commonly used to refer to the slicing up of international law ‘into regional or functional regimes that cater for special audiences with special interests and ethos’ (Koskenniemi 2007: 2). The most notable functional regimes are international trade law, environmental law, human rights law, humanitarian law, law of the sea and so on – when there is a collision between these regimes – than the conflict of norms becomes an unavoidable consequence – because each regime seeks favorable treatment towards its own. The absence of normative and institutional hierarchy in international law means that the evolution of such regimes is perceived by some as posing a threat to the coherence, effectiveness and predictability of international law. Others see these regimes as contributing to the development of international law.
Summary of Chapters
I. INTRODUCTION: Outlines the research problem, including the background of the ILC's study on fragmentation, the specific objectives of the dissertation, research questions, hypothesis, methodology, and the organizational scheme of the work.
II. A FRAGMENTED INTERNATIONAL LAW: Traces the historical evolution and transition of international law, arguing that it has always been fragmented, and examines factors such as the expansion of states, the emergence of globalization, and the diversification of specialized legal regimes.
III. CONFLICT OF NORMS: Defines key concepts like 'norm' and 'conflict,' analyzes the reasons behind norm conflicts, identifies different levels at which these conflicts occur (institutional and substantial), and categorizes them into conflicts within general law, between general and special law, and between special laws.
IV. RESOLVING CONFLICT OF NORMS: Explores mechanisms to resolve conflicts, focusing on the integration of legal regimes, the debate surrounding the hierarchy of norms, conflict-avoidance techniques, and theoretical and practical suggestions for harmonization.
V. CONCLUSION: Synthesizes the study's findings, highlighting that while international law's fragmentation is an inevitable consequence of its dynamic evolution, it requires more effective integration mechanisms to safeguard the coherence, unity, and equity of the system, particularly for developing nations.
Keywords
International Law, Fragmentation, Conflict of Norms, Specialized Legal Regimes, International Law Commission, Lex Specialis, Jus Cogens, Erga Omnes, Global Governance, Harmonization, Treaty Interpretation, Sovereignty, Developing Countries, International Institutions, Systemic Integration.
Frequently Asked Questions
What is this work primarily about?
This work explores the "fragmentation" of international law, analyzing how the proliferation of specialized legal regimes leads to conflicting norms and how these conflicts can be managed within a globally integrated legal order.
What are the central thematic areas?
The core themes include the historical development of international law, the emergence of specialized regimes (trade, environment, human rights), the nature of norm conflict, and the debate between constitutionalist and pluralist approaches to international law.
What is the primary objective or research question?
The primary research question is whether the contemporary international legal system is a fragmented system, and if so, what are the implications of this fragmentation for the coherence and effectiveness of international law, particularly regarding the interests of developing countries.
Which scientific methodology is utilized?
The study employs a doctrinal and legal research methodology, utilizing primary sources such as international conventions, ILC reports, case law from the ICJ, ITLOS, and WTO panels, alongside secondary sources like academic books, journals, and analytical legal literature.
What topics are covered in the main body?
The main body examines the historical fragmentation of international law, detailed definitions of norm conflicts, institutional and substantive conflicts, the role of hierarchy of norms, and practical techniques like systemic integration, conflict clauses, and treaty interpretation used to resolve these conflicts.
Which key terms characterize this publication?
The work is characterized by terms such as International Law, Fragmentation, Conflict of Norms, Lex Specialis, Jus Cogens, Systemic Integration, and Global Governance.
How does the ILC's study on fragmentation contribute to the argument?
The ILC study serves as a foundational reference throughout the work; the author uses it to map out the risks of normative fragmentation, evaluate existing legal techniques for conflict resolution, and discuss the debate over the existence of a formal hierarchy of norms.
What is the significance of the "Kadi" case discussed in the work?
The Kadi case is highlighted as a significant example of the tension between the international legal order (specifically UN Security Council resolutions) and the internal constitutional and human rights standards of regional entities like the European Community.
What is the author's stance on the "self-contained regime" concept?
The author discusses the "self-contained regime" concept critically, noting that while some scholars and regimes claim this status, the work suggests that most regimes remain partially or fully dependent on general international law, and thus are not truly isolated.
- Quote paper
- P. R. Kalidhass (Author), 2010, Conflict of Norms in a Fragmented International Legal System. A Critical Analysis, Munich, GRIN Verlag, https://www.hausarbeiten.de/document/273669
