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?
Inhaltsverzeichnis (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
- 4.1. Institutional Conflicts
- 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
- a. Conflict Resolving Techniques
- 2.2. There is no Hierarchy of Norms
- 2.1. There is a Hierarchy of Norms
- 3. ILC STUDY ON FRAGMENTATION
- 4. THEORETICAL WAY FOR CONFLICT RESOLUTION
- 5. SUGGESTIONS TO RESOLVE CONFLICT RESOLUTION
- 1. INTEGRATION OF REGIMES
- V. CONCLUSION
Zielsetzung und Themenschwerpunkte (Objectives and Key Themes)
This dissertation aims to examine the fragmentation of international law, focusing on the conflict of norms that arises within this fragmented legal landscape. It explores the reasons behind this fragmentation and analyzes the various levels and forms of conflict that result.- The Fragmentation of International Law
- Conflict of Norms in International Law
- Reasons for the Fragmentation and Conflict
- Different Levels of Conflict
- Methods for Resolving and Integrating Conflicting Norms
Zusammenfassung der Kapitel (Chapter Summaries)
The introduction outlines the purpose, scope, and research questions of the study. It also establishes the methodology and the organization of the dissertation. Chapter II explores the concept of a fragmented international law, tracing its development from the early stages of international relations. It analyzes the historical evolution of international law, highlighting its transformation from a system dominated by natural and secular law to a more complex and fragmented structure. This chapter examines the key factors contributing to this fragmentation, including the horizontal expansion of states, the diversification of courts and tribunals, the proliferation of international and transnational organizations, and the increasing number of subjects of international law. Chapter III delves into the concept of conflict of norms, defining different types of conflict and exploring the reasons behind their emergence. This chapter investigates the various levels of conflict, including vertical conflict between national and international law, regional and international law, and horizontal conflict between regimes of international law. Chapter IV examines different methods for resolving the conflict of norms, focusing on the integration of regimes and the hierarchy of norms. It presents various arguments regarding integration and analyzes different levels of integration. The chapter also explores the concept of hierarchy of norms, discussing both arguments for and against its existence.Schlüsselwörter (Keywords)
The core focus of this dissertation lies in the fragmentation of international law and the challenges posed by the conflict of norms. Key concepts explored include the evolution of international law, the rise of globalization, jus cogens, obligations erga omnes, soft law, integration of regimes, hierarchy of norms, and different levels of conflict resolution.- Quote paper
- P. R. Kalidhass (Author), 2010, Conflict of Norms in a Fragmented International Legal System. A Critical Analysis, Munich, GRIN Verlag, https://www.grin.com/document/273669
