The pack includes a comprehensive overview of the fragmentation of international law. It includes lecture notes, core and further reading notes as well as a model answer to a past paper question.
LL278
Fragmentation in International Law Revision
Main Definition and development of fragmentation:
points/facts: Dictionary: ‘Existing or functioning as though broken in
separate parts; disorganized, disunified.’
Gerard Hafner:
International law is a responsive discipline; loves a glob
problem to occur, to then step in, respond and remedy
problem
Particular problems and tragedies have given rise to
particular regimes in a piecemeal way
Eg:
LOAC: 1863 Committee of the Red Cross; 1864 1st Gene
Convention adopted – gave birth to the law of armed
conflict, responding to violence with an institution and
remedy which will remedy what has happened
International Economic Law: 1944 Bretton Woods
Conference (post WW2) establishment of World Bank an
IMF – this was a response to WW2 as states felt as thou
they needed global economic security
But these responses are not all by the same people –
whoever wants to jump on board and solve the problem
meaning a piecemeal approach in international law
Result:
Substantive fragmentation:
- Increasingly specialised regimes (criminal law,
economic, law of the sea, investment, loac, human
rights)
- Growth in treaties
- Wilfred Jenks 1953: …law-making treaties are tendin
to develop in a number of historical, functional and
regional groups which are separate from each other
and whose mutual relationships are in some respects
analogous to those of separate systems of municipal
law’
Institutional fragmentation:
- Proliferation of international courts and tribunals (IC
ICC, ITLOS, WTO, regional human rights courts)
- Proliferation of international organisations (UN, IMF
World Bank, UNICEF, WTO)
, Examples of fragmentation:
Norm conflict –
- Trade and environment: MEAs (multilateral
environmental agreements) banning environmentally
harmful trade – Montreal Protocol is a treaty within
Environmental law
- Montreal Protocol on Substances that deplete the
Ozone Layer, Article 4 and 4a – clauses bans the trad
on relevant substances which is effectively restrictin
trade of the substances
- International Trade Law and WTO which conflicts as
wants to liberalise trade between countries – but
Article 20 of GATT says that trade may be restricted
its for environmental purposes
- So the problem is that the way the clauses in protoco
are practically interpreted and implemented is quite
different – level of strictness or looseness by which w
follow when importing such hazardous products is n
the same in international environmental law and WT
which can lead to contradiction
Inconsistent jurisprudence –
Articles on the Responsibility of States for
Internationally Wrongful Acts, Article 8 : ‘The condu
of a person or group of persons shall be considered a
act of a State under international law if the person o
group of persons is in fact acting on the instructions
or under the direction or control of, that State in
carrying out the conduct.’
ICJ in Nicaragua (1986), para 115 : ‘For this condu
to give rise to legal responsibility of the United State
it would in principle have to be proved that that Stat
had effective control of the military or paramilitary
operations in the course of which the alleged violatio
were committed.’
ICTY (international criminal tribunal dealing with
individual responsibility) in Tadić (1997) : ‘appropria
to say that the standard established by the “overall
control” test is not as rigorous as [the effective contr
test]. … This different and less rigorous standard is
wholly consistent with the fundamental purpose of
Geneva Convention IV, which is “to ensure the
, protection of civilians to the maximum extent
possible”.’ (paras 145-6)
ICJ in Bosnian Genocide case (2007), paras 402-7:
‘the ICTY was not called upon in the Tadic ́case, nor
it in general called upon, to rule on questions of Stat
responsibility, since its jurisdiction is criminal and
extends over persons only. (…) The [overall control
test] is unpersuasive.’
Forum shopping –
- Practice of litigants having their legal case heard in
court most likely to provide a favourable judgment
- Qatar v. UAE: ICJ, UN Committee against the
Elimination of Racial Discrimination
- Palestine v. Israel: ICC, ICJ, UN Committee against
Elimination of Racial Discrimination
- Mauritius (Chagos): Permanent Court of Arbitration
ICJ
- Georgia v. Russia: European Court of Human Rights
ICJ
- Too much choice causes bodies in question to begin
compromising judicial function and instead of doing
correctly they will just think ‘what decision shall I gi
that will keep the client happy with me’
Solutions to fragmentation:
International law commission, Martti Koskenniemi created
ILC Report 2006: ‘Fragmentation of International Law:
Difficulties arising from the diversification and expansion o
international law’
- Express provisions
- Lex superior
- Jus cogens
- Lex specialis
- Lex posterior
- Systemic integration
Express provisions examples:
- General Interpretive Note to Annex 1A for the WTO
Agreements:
‘In the event of conflict between a provision of the
General Agreement on Tariffs and Trade 1994 and a
provision of another agreement in Annex 1A to the
Agreement Establishing the World Trade Organizatio
(referred to in the agreements in Annex 1A as the
“WTO Agreement”), the provision of the other
agreement shall prevail to the extent of the conflict.’
- Geneva Convention on the High Seas, Article 30
‘The provisions of this Convention shall not affect
conventions or other international agreements alrea
in force, as between States parties to them’.’
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