A
Doctrinal Debate in the Globalisation Era: On the “Fragmentation” of
International Law
Pierre-Marie Dupuy*
On
In an attempt to define more
precisely the essential contours of this issue, we will examine succinctly (I) the
causes of the debate on fragmentation, (II) the core of this debate, (III) the
purposes of maintaining the unity of the international legal order, and (IV)
reach conclusions on the substantive problem presented.
I. The causes of the debate on fragmentation
There are several reasons why this
debate on fragmentation has arisen. Some are technical; others political and
cultural. Here we will concentrate on the former; the latter will be discussed
in the course of examining the purposes of such a debate. There are mainly two
technical causes which have given rise to a fear that international law is in
the course of fragmentation. Both causes are linked to the general phenomenon
of the ongoing expansion of international law’s material scope. The first, normative, stems from the tendency
towards greater autonomy of special regimes, the second, organic and institutional, is based on the growth of methods and
procedures of control (not all judicial), which ensure the application of law.
A. The illusion of self-contained regimes
Here, we see at once the appearance
of a spectre long raised by commentators, that of self-contained regimes, a
sort of Leibnitzian monad transposed into international law, namely entities
conceived of as completely autonomous and floating freely in the legal ether.[3] For
advocates of the existence of such systems, these entities would indeed
maintain no relation with general international law as they no longer have any
reasonable need of it. They would themselves provide, using their conventional
instruments, for all their needs; lex
specialis and general international law thus being perceived as standing in
a substitutive, rather than a complementary, relationship to one another. These systems are in this way deemed to have
their own methods of control to ensure the application of their norms. Frequently,
they incorporate their own procedures of revision. Often possessing follow-up
mechanisms, they are provided with their own specific regime of sanctions. In
this way, freed of all dependence on customary international law concerning
primary norms or responsibility as a sanction for their non-execution, they would
remain international in their scope of application, but not in the sense of
belonging to the pre-existing international legal order.
The self-contained regime, whose
initial invocation arose from an incorrect interpretation (nourished by a
manifest ignorance of the legal reasoning of the International Court of Justice
in its decision concerning the
However, none of the theoretical
justifications advanced by those who identify special regimes wherever it suits
them stand up to analysis. Even when a
sub-system of law is original in terms of its secondary norms of recognition,
enactment and adjudication, to use the terminology of H.L.A. Hart, it does not
necessarily become cut off from the body of governing principles. This is
particularly true of the interpretation of international obligations,
especially those arising from conventions. For example, we have seen in other
respects how international trade law, under the aegis of the WTO appeal panel,
and also international environmental law, investment law, and even European
Community law, have preserved substantial and fundamental links with, and
remained connected to, the international legal order.[7]
To take human rights as an example (and here one can agree with those who denounce
droit de l’hommisme), they do not
constitute an autonomous field of law distinct from international law, but
remain an evidently integral part of it. None of these bodies of law can be
applied and interpreted in a clinical
vacuum, to borrow the parlance of the WTO appeal panel concerning international
trade law.[8]
Being part of the international legal order, it is there that these particular
norms are interpreted, and the inevitable gaps in their specific regimes of
secondary norms are filled in order to ensure their application.
In other words, it is one thing to
note the emergence of various sub-systems in international law, each possessing
its own institutions and substantive law, according to the provisions of
particular agreements. It is another to entertain the illusion that each
sub-system is independent from the general normative framework constituted by the
international legal order. Contrariwise, these special regimes draw on general international
law for responses to certain questions, illustrating the incompleteness of the
special body of rules on which they are based.[9] Fragmentation
is thus not readily apparent when this is considered. As we will see later, and
as the International Law Commission has recognised, the increasing power of the
relative autonomy of leges specialia
instead demands the development of new approaches to resolving conflicts
between international norms.[10]
A. The proliferating control mechanisms for the application of law
The second technical cause which has
provided fodder for a theory of fragmentation is not only normative, but also
institutional. Moreover, it is in large part connected to the appearance and
development of the convention-based sub-systems just described, and was the
focus of the President of the International Court of Justice’s address in 2000.
The warning given that day was essentially linked to an organic phenomenon: the
contemporary multiplication of international jurisdictions, and the correlative
risk that contradictory international
jurisprudence would appear. A particular regional human rights court, or a
specialised judicial (or quasi-judicial) organ, might thus interpret the growing
number of rules of general international law in a different manner to the ICJ
itself. Notwithstanding the principle of relative effect of the Court’s
judgments established by Article 59 of its Statute, everyone accepts that its
judicial interpretations are for the most part binding on all the subjects of
international law. In this regard, the Court certainly plays a central role in
ensuring unity of interpretation in international law; it is this function
which therefore appears most threatened. It is thus clear, in effect, why the
President of the ICJ has become justifiably concerned by this matter. This
preoccupation stems from the quite entrenched (and, it would seem, voluntarily
dissident), approach which the Appeal Chamber of the International Criminal Tribunal
for the former Yugoslavia, then under the presidency of Professor A. Cassese,
took in the Tadic case to the ICJ’s
jurisprudence on the conditions of State responsibility for the actions of an
armed militia and the criterion of control which must be established.[11]
The continuation of sufficient unity
in the international normative system will effectively depend in future on the
perception which judges have of the existence and coherence of such a system as
well as their actual knowledge of its content. International criminal tribunals
(including, henceforth, the International Criminal Court), as well as the
Tribunal for the Law of the Sea, courts and supervisory bodies for human
rights, the WTO appeal panel, arbitration tribunals (not forgetting those of
ICSID and NAFTA) who are now making regular use of international law, and
finally, the entire cohort of follow-up
mechanisms, are embarking on a common legal voyage. They must act
cautiously and concertedly if they do not wish to capsize their vessel. To
employ another metaphor, they all speak a language in which the common grammar
is international law.
Other causes, of a strategic,
ideological and even cultural character, should also be recognised, even if
they fit less easily within a legal analysis. They are in reality linked to the
stakes of the debate, which expand beyond the restricted domain of specialists
of international law.
I. The core of the debate on fragmentation
Everyone speaks of the fragmentation
of international law, but this expression only has meaning if it encompasses
not only the body of rules, but the actual legal order, which is independent of that of States and which asserts
itself in an objective fashion with respect to the domestic
legal systems. Identifying the phenomenon of fragmentation, or verifying
whether this is in fact occurring, is only possible by having regard to the
notion of a legal order. What is meant by legal order here, and do all authors speak of the same thing when
they suggest (and some would prefer not to have to do so) that this order is
threatened by fragmentation? In formulating a response, we will return briefly
to the genesis of the concept of a legal
order and then its application to international law.
A. The genesis of the concept of a legal order
Here too we should note certain
differences, of which we should neither exaggerate the importance nor
underestimate the scope, between legal cultures on each side of the
Historically speaking, the appearance
of the idea of a legal order is a
fairly recent one, more particularly so in the sphere of international law.[13]
The first commentators to invoke this idea emerged in the study of German
public law in the first half of the 19th century. They can be found
among the successors of the political philosophy of Kant, and later Hegel and
Schelling.[14]
In tandem with the theory of Rechtsstaat
with which it is frequently associated, the concept of Rechtsordnung, referring to the idea of an organic and structural
normative whole, first appeared, according to Jean-Louis Halperin, in Julius Stahl’s
writings from 1830.[15]
B. Application of the concept to international law
After jurists of internal legal
systems, the idea of a legal order first attracted German specialists in private
international law, such as Windscheid.[16]
However, even if previously
encountered in the work of Jellinek, the concept of legal order did not really
gain ground in the public international legal community
until the celebrated work of Triepel[17]
Droit international et droit interne (1899)
at the very end of the 19th century.[18]
It is true that the application of this expression to legal relations between
States was until then very limited, due to the stringent opposition of several
commentators.[19]
However, in the same period, the young Anzilotti, having an excellent knowledge
of German legal theory, introduced the concept of legal order in his writings on private international law.[20]
He later appeared to have no hesitation in describing international law as such
a system, for example in his academic course, translated into French in 1929 by
Gilbert Gidel.[21]
In
In
The concept of a legal order is not
ignored by commentators in the English-speaking world though it seems to hold
little interest for American academics,[32]
- at least international scholars. It appears in the legal philosophy of Ronald
Dworkin, who is, admittedly, at
Nevertheless, English international
specialists themselves use the term much less frequently[35]
than contemporary German international academia, where it is often linked to
the idea of a constitution, with particular reference being made to the UN
Charter.[36]
If conceptions of a legal order vary significantly between authors, all agree
that the expression refers to the
organisation of a more or less
complex system of norms and institutions intended effectively to apply to the
constitutive subjects of a determined community.[37]
If one remarks on the recently increasing
academic recourse to the concept of an international
order, moreover now intertwined with considerations of its fragmentation,
it is necessary to realise that this use of a generic notion of order is more than a device of language.
More frequently, the use of this term flows from the following observations:
firstly, that although some of its initial characteristics survive, the
structure of international law is now (and for at least fifty years has been)
supported by a growing number of elements: such as an ever thicker tapestry of
general multilateral treaties enshrining its rules and basic principles;
several hundred international organisations which themselves produce a
substantial body of secondary law; an increasing body of case law, whose overlap
and accumulation gives a density and complexity to international law, in which commentators
must seek to demonstrate an intrinsic coherence, on the one hand apparent and
on the other hidden. Caused to panic by the breadth and complexity of this
task, some of them prefer to dissemble the whole into pieces and speak of the
inexorable fragmentation of international
law. So what are nonetheless the purposes of maintaining unity?
I. The purposes of maintaining the unity of the international legal
order
An international legal order can
only exist as long as it guarantees to its subjects a unity which is
sufficiently organic and substantial to serve as an effective framework for
their international relations. The question of maintaining its unity presents a
two-sided issue in which none of the elements are always immediately clear. The
first facet is technical and legal. The second facet is political, but that is
no reason to disregard it.
A. Technical aspects
In several leading works,[38]
Pierre Legendre showed, in magisterial fashion, how Western legal thought
remained branded with the mark of scholastic thought. We have inherited, via
Thomism, the Roman conception of law as laid down by the Justinian Code. If one
agrees briefly to locate oneself within a critical perspective (as the Critical
Legal Studies movement would have you do), one could ask whether, in spite of
the triumph of positivism in the 20th century, in its voluntarist
and normativist forms, a successor of scholastic thought and natural law cannot
be found in this irrational fear of losing the centre, the initial source of
all legal meaning, a unique origin from which the meaning of the whole would
flow; an essential source in which, rather ironically, Kelsen’s Urnorm would be nostalgically manifest.
It is here that legal and theological thought are reunited in our background
consciousness, the former having served as a support for the latter throughout
fifteen centuries of a Christianity integrated into State religion, before
itself having generated a religion of the
State. The mere passage of several decades cannot erase such a profound mark on
legal thought.
How do we respond to this? This
influence has in fact remained, but it is testimony of a continuing need, no
longer theological, but simply logical, for
a centre. While Dionisio Anzilotti, in his course on international law in 1929,
described a legal universe totally conditioned by the sole will of sovereign
States, he recognised the alterity of an international legal order in relation
to sovereigns, although they would be both the authors and subjects of such an
order.[39]
He also acknowledged, following the example of Kelsen (whose work he was very
familiar with), the necessity of a basic norm, which he qualified – in a
meaningful way – as metaphysical, and
thus, as such, escaping from legal analysis. As for Kelsen himself, the role of
this same norm in his work is well-known; even if, throughout his existence, he
uses different foundations or terminology for this norm.[40] Moreover, Kelsen insisted several
times that a legal order could not exist without unity. Following on from this, he distinguished two categories of
legal system, one static and the other dynamic, a fertile distinction which will
not be explored further here.[41]
Firstly, why unity in the technical
sense of the term? Above all, unity is required for the sense, that is to say both the direction
and the meaning, of a system articulated in terms of norms, subjects and sanctions.
To take one of several examples: the expression ‘international responsibility’
should have the same object and meaning, regardless of the obligation whose
violation it refers to. This remains the case even if the particular type of
international responsibility has different forms, and even different foundations,
within the system of application concerned. In this manner, we see how the dictum of the I.C.J. in the Lotus case on the obligation of reparations
for damage caused by the illegal acts of a State is inexorably invoked in the
writings of authors, and even more so, in the pleadings of parties before the
Court or any arbitration tribunal hearing a case on responsibility, either
between States or transnationally. An omnipresent Leitmotiv, whatever the field of application, this Lotus adage concerning the obligation of
reparations thus exemplifies the unity of sense given both to a term, and to the
legal institution to which it refers, responsibility.
One could give numerous examples
showing the link between the technical and social necessities of ‘maintaining
order’, meaning here the unity of the international legal order. From this
latter viewpoint, if ideas such as the ‘nullity’ of legal acts, ‘recognition’
(of a State, a government or a legal situation), ‘acquiescence’, of ‘territorial
sovereignty’, ‘legal title’, ‘nationality’, ‘diplomatic protection’ and the
rules encompassed by these terms acquired a different meaning according to
their geographical or material scope of application, the very security and efficacy of relations governed by international law
would be severely challenged. The unity of application of international law is,
like the application of Community law in the framework of the European Union, a
condition of both its efficacy and its survival, nothing less than that.
Nowadays, as illustrated by the
comparative jurisprudence of contemporary international legal (and quasi-legal)
tribunals, there is a constant interpenetration between the application of general
international law and the rules of special international regimes As the latter
can only be defined by reference to the former, general international law
provides the conceptual, linguistic and instrumental framework facilitating the
application, even if it is a derogation therefrom, of special rules. Moreover, it
is especially striking to note that particular areas, such as the law governing
relations between States and foreign private investors (long disputed by competing
systems of rules), now have increasing resort to the application of rules and
principles of general international law, which provides with both the sense and
scope of such laws. In a time when one speaks more and more of fragmentation,
here it is rather more appropriate to speak of unification under the banner of
international law.[42]
The paradox of all legal systems, which
is but a fictitious one, is the following: the very idea of a legal order
depends in part on a subjective base provided by the recognition of its
existence by the subjects and entities concerned.[43]
However, once this ‘contractual’ base (in the wider sense that the subjects and
entities are persuaded, by convention and general social assent, of its
existence) is constituted, the system acquires a quasi-objective dimension: its
existence is obvious to all, provided that it can adapt to the needs of the community
governed. This adaptation is the respective task of legislators (here, States
acting by way of treaty and also by the progressive accumulation of declarations
reiterating the appearance of a new opinio
juris, as well as judges and arbitrators.
In this regard, one is probably
closer to Santi Romano than to Kelsen, as the former made use of the old adage Ubi societas, ibi jus as the foundation
of his theory of l’ordinamento giuridico.[44]
However, as stated earlier, the master of
This being the case, we understand
that the struggle against the fragmentation of the international legal order is
not a vain crusade led by an exhausted troop of neo-conservatives. It is simply
the result of a realisation, initially empirical, by legal practitioners,
judges, State legal advisors and even civil society actors concerned with law,
that we cannot have an international community governed effectively by law if
there is not a common understanding of its terms.
Academic comment, for its part,
mainly arrives after (a little like Offenbach’s policemen); and generally a
little late, whether it is mainstreamed,
critical, or a post-modern
version…let us be indulgent with scholars, however. It also has its role to play.
Scholarly analysis is useful, not only in terms of interrogating its own
legitimacy, as Critical Legal Studies
sometimes usefully does, but primarily to fulfil a technical function: to
contribute to the intelligibility of
a normative edifice of arborescent complexity, and whose entangled ramifications
are in a constant state of development. As it is the coherence, and thus the
unity, of the international legal order which gives meaning to norms and
institutions, authors should, as a matter of functional exigency, firstly act
as guardians of unity in the technical
analysis of norms and of their interpretation by those who created them.[46]
Again, this does not rule out questioning the ideological origins of a
particular legal discourse, contrary to what the classical positivist school itself has long
believed (even though, as Norberto Bobbio has shown, positivism itself is
possessed not only of a theory and a method, but also of an ideology).[47]
B. Political considerations
The question of maintaining unity is
not only of interest to academics. It is also a practical and political question, in the most direct,
if not trivial, sense of the term. Save for deliberate exceptions, all treaty
regimes and special rules of international law, limited to a specific object, can
be rejected by sovereign States. A treaty can be repudiated. However, one
cannot reject a legal system of which one is not only the subject but also,
among two hundred others, the author. Challenging the unity of the
international legal order by spreading the idea of its fragmentation, creates a
doubt over both its existence and its survival, caused by the casual
affirmations of ‘realists’, who have probably never worked in an international
firm or participated in the negotiation of an international convention. In a
slightly amended form, fragmentation would paradoxically verify the fact that,
having previously existed, the unity of international law has not in reality
resisted the proliferation of the overrated ‘free-riding’ self-contained
regimes, which inexorably erode the protective
envelope of international law!
Without putting all advocates of a
thesis of fragmentation into the same basket, or putting words in their mouths,
it is possible to establish a rapprochement
at least between some of them and the growing number of commentators,
particularly in the United States, who now challenge either the existence or
the legitimacy of public international law, in order to contest its ability to
constrain the foreign policy options of the world’s foremost superpower.[48] In each case, why continue to refer to
law, since it only serves an à la
carte function? The basis of the problem is thus to succeed in safeguarding
the unity of interpretation of international law in order to ensure its coherent
application.
I. The basis of the problem: Safeguarding the unity of application of
international law
At its 58th session in 2006, the
International Law Commission concluded its study on the fragmentation of
international law by the adoption of conclusions[49]
to its lengthy report. We have not sufficient space to analyse the details of
this document here, but the conclusions merit several remarks. They illustrate
once more the restrained distance that may separate optimism from pessimism! In
an accomplished and pertinent commentary in Issue 1 of 2007 of the Revue Générale de Droit International
Public, Professor Benedetto Conforti, a former judge of the European Court
of Human Rights, highlights the heavy and obvious statements (or affirmations
of evidence) made by this text and calls into question its very utility. The
conclusions seem for the most part content to summarise the well-known rules of
interpretation of international law, and of relations between treaty-based and
customary law.[50]
Nothing is new in these conclusions: they have the character of a somewhat
rigid summary of elementary principles.
Nevertheless, several points of
merit can be found in these laborious conclusions. This is particularly so if
we consider them in relation to the increased study of this topic in recent
years. It is also in keeping with the spirit of what we have just remarked upon
concerning the cultural differences in international academia that these
conclusions should be of interest: precisely because they place a little order
on the discussion by limiting their concentration to the basis of the problem, i.e.
the interpretation of norms and the relations between lex specialis and customary international law. As it constitutes a
pedagogical work inviting commentators to return to basics, the International
Law Commission report is probably deserving of our gratitude.
1) The heading of these conclusions
itself is careful to reset the context of its subject: it does not speak of
fragmentation but of the ‘diversification’ and the ‘expansion’ of international
law, which necessarily results in a growing complexity of relations between
international rules. Under this heading, the conclusions of the Commission
concerning the relationship of self-contained regimes to general international
law serve as a useful clarification. Subject to the same conditions as any lex specialis, these regimes can
certainly derogate from international law, but international law preserves its
entire validity. In particular, it is called upon, as noted above, to fill the
inevitable lacunas in these regimes. It can also serve as a substitute where
these particular normative constructions have demonstrably failed.[51]
That is self-evident for any well-informed international specialist, but it is
probably as well to state it explicitly!
In this way, the problems,
mistakenly discussed using the equivocal term of ‘fragmentation’, are not
denied by the ILC’s text. However, they are resituated within their correct
dimensions and their appropriate context. Within this re-adjusted framework,
interesting observations are made on the use which should be made of the rule
established by Article 31.3 (c) of the Vienna Convention on the Law of Treaties,
according to which a provision of a convention should be interpreted by taking
account of “any relevant rules of international law applicable in relations
between the parties.”[52]
The increasingly successful reference to this provision in international
jurisprudence, including that of the International Court of Justice, is well-known.[53]
2) The second interesting point made
by these conclusions is that they affirm, strongly and clearly, that there
exists an order or system of international law. In this regard, the first
conclusion of the report deserves to be quoted in part:
“International
law is a legal system. Its rules and principles (i.e. its norms) act in
relation to and should be interpreted against the background of other rules and
principles. As a legal system, international law is not a random collection of
such norms.”
This seems evident to those,
including myself, who have been raised in this vision of international law.
However, it serves as a highly useful restatement to those who negate both the
validity and existence of international law, for whom the theme of ‘fragmentation’
allowed a means of continuing the old refrain of its inexistence. One could
hardly have wished for a stronger re-affirmation of the unity of international
law. Having personally dedicated almost 500 pages to illustrating this unity
several years ago, I can only approve of the clear stance adopted by the UN
body for the codification of international law.
3) The third source of satisfaction
derived from reading the conclusions reached by the ILC in 2006 stems from the
fact that they also directly affirm the existence of peremptory norms of
international law, and identify a large part of their content, pointing out
that the usual rules for resolving conflicts between norms are not applicable
in this instance. In particular, conclusion 32 provides:
“A
rule of international law may be superior to other rules on account of its content
as well as the universal acceptance of its superiority. This is the case of
peremptory norms of international law…”
Here again, we can only regard such
an affirmation as the enunciation of a truism. However, we know that the
oppositions of principle to the recognition of peremptory norms remain
numerous, at least in certain countries, and it was not until February 2006
that the International Court of Justice itself decided to recognise the
existence of jus cogens norms.[54]
This obvious finding of the ILC, although it
is but a reference to a convention provision of nearly forty years’ standing
(Article 53 VCLT), serves in any case to prove that contemporary international
law is not principally threatened by the fragility of its supposed
fragmentation. In fact, it is animated by an inherent tension between two competing
unitary principles, which are in certain respects contradictory.
Having already explained elsewhere
the ‘theory of the two unities’,[55]
I will limit myself here to an exposition of its two axes. The first is that of
the formal unity of international law
as a legal order. It refers to the fact that general international law is
composed of a certain number of formal rules, all secondary norms pursuant to
Hart’s theory: they govern the conditions of production of primary norms, their
application, their revision and sanctions for their breach (the rules of State responsibility).
These rules are precisely those which are called upon to complete or supplement
those of special international law (lex
specialis), whether the latter crystallise or not into a legal sub-system,
misleadingly described as ‘self-contained’. Since the adoption of the United
Nations Charter, which possesses, in this regard at least, a material
constitutional dimension,[56] there exists a second principle of
unity: the substantive or material unity, as shown by the existence of
peremptory norms, which relates to the content of such norms and not merely their
form. However, these two types of unity both obey distinct logics. The first
logic, that of formal unity, is found in the principle of identity. Here, for
example, a treaty is negotiated and responsibility is established generally in
the same way, regardless of the content of the particular norm. The other,
characterising substantive unity, corresponds to a hierarchical logic; not the
lateral one of identity, but the vertical one of authority. These two logics happen
to contradict with one another because the social importance accorded to a norm
causes it, even outside any treaty-based framework, to derogate from the rule.
The issues of reservations and accession to human rights treaties, State
immunity and head-of-State immunity, confronted by the systematic pursuit of
those responsible for “crimes of international law”[57]
such as genocide, torture or systematic rape, are more than illustrations of these
relations in the foundations of international law, tugged between obedience to
State sovereignty and the affirmation of fundamental human rights. The
character of imperative norms, as the ILC’s conclusions point out, is to
prevail in all cases over norms which are merely obligatory.
In recognising this phenomenon, the
text adopted by the International Law Commission is not a work of progressive
development. It limits itself to taking account of positive law, as it has
developed pursuant to Article 53 of the Vienna Convention on the Law of
Treaties, even though close to eighty States have not ratified this Convention.
However, the persistent opposition of these States to the system created by the
Convention for the interpretation and application of such norms (Articles 64
and 66) is one thing. It is another to note that the doctrine of jus cogens, led by State practice and
its increasing recognition in international jurisprudence, has greatly altered
the very structure of international law as a legal order, in spite of the fact
that the values affirmed by these norms remain so often disregarded. The equal
necessity of placing order on the manner in which this jurisprudence refers to jus cogens is not in doubt, but is another
issue, already dealt with elsewhere.[58]
The ILC’s conclusions will certainly
not close the debate on fragmentation, an academic leitmotiv in an era of globalisation. However, they will allow the
debate to regain its true dimension, and thus pay a service to an academic discussion
where too many of the participants were probably leading themselves astray.
* Chair in public international law, European
University Institute and
[1] Among the most prescient works, see in particular K. WELLENS, “Diversity in Secondary
Rules and the Unity of International Law: Some Reflections on Current Trends”,
25 N.Y.I.L., 1994, p. 3637; among the
most prescient studies, see particularly I.
BROWNLIE, “Problems Concerning the Unity of International Law”, in Le droit international à l’heure de
sa codification, Etudes en l’honneur de Roberto Ago, Vol. 1, Milan, Giuffrè, 1987,
pp. 156-ff; M. PEREZ GONZALEZ, “En
torno a la tension entre lo general y lo particular en Derecho de gentes”, in Homanaje al Profesor Alfonso Otero, Santiago
de Compostela, 1981, pp. 665-685; P.M.
DUPUY, “Sur le maintien ou la disparition de l’unité de l’ordre juridique
internationale”, in Harmonie et
contradiction en droit international (Rencontres internationals de
[2] P.M. DUPUY, L’unité
de l’ordre juridique international, RCADI,
2002, Vol. 297.
[3] See P.M.DUPUY, o.c., pp. 432-438 ; B. SIMMA, “Self-contained Regimes”, NYIL, Vol. 16, 1985, pp. 111-ff; see also B. SIMMA, D. PULKOWSKI, “Of Planets and the Universe: Self-contained Regimes in International Law”, EJIL, 2006, pp. 483-ff.
[4] See the reports of the Special Rapporteur to the ILC, W.RIPHAGEN, ACDI, 1982, I, pp. 200-ff and the merited criticisms of the subsequent Special Rapporteur, G. ARANGIO-RUIZ, ACDI, 1991, II, Chapter VIII, 1992; II, Chapter VII, §§ 97-126.
[5] See P.M. DUPUY, “L’unité de
l’ordre juridique international”, Cours
général de droit international public, RCADI, 2002, Vol. 297, pp.
432-450.
[6] Ibid.
[7] Ibid., pp.450-ff.
[8] See the
first report of the WTO Appeal Panel, 29 April 1996, p. 9; G. MARCEAU, “A Call for Coherence in
International Law – Praises for the Prohibition Against ‘Clinicum Isolation’ ”,
WTO Dispute Settlement Journal of World
Trade, 1999, No 5, pp. 87-152.
[9] Put simply,
to be able to take into account the existing links between general and special
rules of international law, one shouldn’t confine one’s legal knowledge to a
narrow domain of specialisation (trade, health law, intellectual property or
crisis prevention) or have a thorough but isolated knowledge of refugee or
environmental law, while believing that it is not necessary to also understand
international law itself.
[10] ILC, 58th Session (2006), “Fragmentation of International Law: Difficulties arising from the diversification and expansion of international law”, Report of the Study Group, Doc. A/CN/.4/L.682 (hereinafter cited as Report of the Study Group).
[11] Compare, in particular, §§ 108, 109 and 115 of the decision of the
ICJ of 27 June 1986 between Nicaragua and the United States (Rec., 1986)
and the second decision of the Appeal Chamber of the ICTY in the Tadic Case, IT-94-1-T, 15 July 1999, §§
112-114. On this divergence in jurisprudence, see especially C. KRESS, “L’organe de facto en droit international public”, RGDIP, 2001/1, pp. 93-144.
[12] See G. TIMSIT, “L’ordre juridique
comme métaphore”, Droits, Oct. 2001,
pp. 3-18.
[13] In this regard, see the stimulating article of D. ALLAND, “De l’ordre juridique international”, Droits, Oct. 2002, pp. 79-101.
[14] See J.L. HALPERIN, “L’apparition et
la portée de la notion d’ordre juridique dans la doctrine internationaliste du
XIXème siècle”, Droits,
Oct. 2001, pp. 41-51; see also N.
LUHMANN, “L’unité du système juridique”, Archives
de philosophie du droit, 1986, pp. 163-188. For a
historical overview of German public law theory, the indispensable work is that
of M. STOLLEIS, Geschichte des öffentlichen Rechts in Deutschland, München, 1992, particularly
Vol. 2. See also J.F. KERGEVAN, “L’Etat après Hegel: Le dépassement social
et politique”, in S.GOYARD-FABRE , L’Etat moderne, 1715-1848, Paris,Vrin,
2000, pp. 294-ff.
[15] J.L. HALPERIN, o. c., p.43.
[16] Windscheid, Recht und
Rechtswissenschaft, 1854.
See M. STOLLEIS,
o.c., Vol. 2, pp. 156-ff.
[17] This work was not translated into French until 1920: H. TRIEPEL, Droit international et droit interne, French translation, Paris,
Brunet,
[18] Denis Alland noted that, in this
foundational work, one frequently finds the expressions “legal system” and “legal
order”, but not yet “ international legal order,” even if the author comes
very close to recognising this. O.c.,
p. 80.
[19] Notably
Puchta and Adolf Lasson, cited by J.L.
HALPERIN, o. c., pp. 48-49.
[20] D. ANZILOTTI, Studi
critici di diritto internazionale privato, 1898, pp. 128-161.
[21] D. ANZILOTTI, Cours de droit international, translation by G. GIDEL,
Paris, Sirey, 1929, re-edited by P.M. Dupuy and Charles Leben, Paris, Panthéon-Assas,
1999; see, in particular, p. 44.
[22] Of which only the second edition, dating from 1946, would be
translated into French in 1975: S.
ROMANO, L’ordre juridique, translated
by L. François and P. Gothot, Preface by P. Franceskakis, Paris, Dalloz, 1975,
§17; “Le concept d’institution et l’ordre juridique international”.
[23] R. AGO, “Le délit international”, RCADI, 1939-II, p. 415.
[24] See, in particular, his academic course for the Hague Academy in 1926, “Les rapports de système entre le droit interne et le droit international public”, RCADI, 1926-IV, p. 231; see also, his “Théorie générale du droit international public”, presented to The Hague Academy of International Law six years later, RCADI, 1932-IV, p. 117.
[25] For an
analysis of the reasons for this divergence, see the observations of J.L. HALPERIN, o.c. pp. 45-
[26] L. DUGUIT,
Traité de droit constitutionnel,
Vol. 1, Ch. III, § 31, p. 326. J.L. Halperin notes however the use of the
concept by Fr. Gény, in a text entitled “La notion de droit subjectif à la
veille du XXème siècle”, o.c.,
p. 45.
[27] L. RENAULT, Introduction
à l’étude du droit international, Paris, Sirey, 1879.
[28] H. BONFILS,
Manuel de droit international public (Droit des gens), Paris, Rousseau,
1894.
[29] In addition to his Précis de droit des gens (Principes et systématique), Vol. 2,
Paris, Sirey, 1932-34, reprint C.N.R.S., 1984, one may also consult a
relatively unknown article written by G.
SCELLE, in the Revue de droit public,
1944, pp. 85-106, entitled “La notion d’ordre juridique”.
[30] G. SCELLE, Manuel de droit international public,
Paris, Montchrestien,
[31] See, in particular, J. COMBACAU, “Le droit international: Bric-à-brac ou
système ?”, in Archives de
philosophie du droit, Vol. 31,
Paris, Sirey, 1986, pp. 85-105. See also the personal
and stimulating analysis of C. SANTULLI,
Le statut international de l’ordre juridique étatique, Paris, Pedone, 2001, preface by
J. COMBACAU, pp. 13-21; D.
ALLAND, Droit international public,
PUF, 2000, pp. 17-ff. The same author had already abandoned use of the concept
in his thesis, Justice privée et ordre
juridique international,
[32] See,
however, O. SCHACHTER,
“International Law in Theory and Practice”, RCADI
, 1982-V, p. 9.
[33] R. DWORKIN, Taking
Rights Seriously,
[34] J. RAZ, The Concept of a Legal System: An Introduction to the Theory of a Legal
System, Oxford, Clarendon Press, 1970, particularly pp. 224-ff; see also A. ROSS, Directives and Norms, London, Routledge & Kegan, 1968.
[35] In this
regard, Denis Alland points out that it is never encountered in the work of I.
Brownlie or Akehurst; o.c., p. 83.
[36] See, in
particular, C. TOMUSCHAT, “International Law: Ensuring the Survival of Mankind on the Eve of
a New Century”, RCADI, 1999, Vol.
281, pp. 25-ff. On the idea of the UN Charter as the constitution of an
international legal order, see infra.
[37] It is
precisely in this manner which I myself use the term, in my Précis of public international law, P.M. DUPUY, Droit international public, Paris,
Précis Dalloz, 8th ed., 2006, §§ 15-27.
[38] See, in particular, L’amour du censeur: Essai sur l’ordre dogmatique, Paris, Seuil,
new ed.; Sur la question dogmatique
en Occident, Paris, Fayard ; Le
désir politique de Dieu, Leçons VIII, Etude
sur les montages de l’Etat et du droit, Paris, Fayard, new ed.
[39] See D.
ANZILOTTI, Cours de droit
international, Translation by G. GIDEL, Panthéon-Assas, , Preface by
P.M. Dupuy and Ch. Leben, 1999, p. 43.
[40] Its
equivalent can be found in Hart’s category of ‘secondary legal rules’, of which
the Kelsenian Urnorm offers a perfect
illustration.
[41] See N.
BOBBIO, “Struttura et
funzione nella teoria del diritto di Kelsen”, in Rivista internazionale di filosofia del diritto, 1973, pp.
187-215, republished and translated into
French in N. BOBBIO, Essais de théorie du droit, Paris, Bruylant, LGDJ, 1998, pp. 207-ff; see also P.M.
DUPUY, L’unité de l’ordre juridique international, o.c.,
pp. 67-ff; and C. LEBEN, “Ordre juridique”, in Dictionnaire de la culture juridique,
Paris, PUF, 2003, pp. 1113-ff.
[42] See C.
LEBEN, “La responsabilité internationale de l’Etat sur le fondement des traités de
promotion et de protection des investissements”, A.F.D.I., 2004, pp. 683-714.
[43] Once again,
this is even truer of international law where the sanction has neither the
verticality nor centralisation assured by a State to a domestic legal sanction.
[44] See P.M. DUPUY,
L’unité de l’ordre juridique
international, o.c., pp. 69-ff.
[45] Ibid., pp. 67-ff.
[46] See P.M. DUPUY, L’unité de
l’ordre juridique international, o.c., particularly pp. 200-ff.
[47] See in particular this author’s “Sur le
positivisme juridique” in Essais de
théorie du droit, Paris, LGDJ, 1998, pp. 23-38, based on an article
published in Italian in 1961. See also P.M.
DUPUY, L’unité de l’ordre juridique,
o.c., especially pp. 26-32 et
207-213.
[48] J. GOLDSMITH and E. A. POSNER, The Limits of International Law, Oxford University Press, 2005, pp. 23-43; J. YOO and W. TRACHMAN, “Less than Bargained for: the Use of Force and the Declining Relevance of the United Nations”, Chi.J.ofIL, 2005, No 5, p. 384.
[49] ILC, “Report
of the Study Group on the fragmentation of international law: Difficulties
arising from the diversification and expansion of international law”, AN/CN.4/L.702,
[50] B.CONFORTI, “Unité et fragmentation du droit
international: Glissez mortels, n’appuyez pas”, RGDIP, 2001, pp. 5-ff.
[51] Conclusions
15 and 16.
[52] Conclusions
18-22.
[53] “[…] under the general rules of treaty interpretation,
as reflected in the 1969 Vienna Convention on the Law of Treaties,
interpretation must take into account “any relevant rules of international law
applicable in the relations between the parties”, Article 31 § 3 (c). The Court cannot accept that
Article XX § 1 (d) of the 1955
Treaty was intended to operate wholly independently of the relevant rules of
international law[…]. The application of the relevant rules of international
law relating to this question thus forms an integral part of the task of
interpretation entrusted to the Court […] by the 1955 Treaty”; ICJ, Case
Concerning Oil Platforms [Iran v. United States of America], 6 Nov. 2003, § 41.
[54] “[...] the fact that a dispute relates to
compliance with a norm having such a character, which is assuredly the case
with regard to the prohibition of genocide, cannot of itself provide a basis
for the jurisdiction of the Court to entertain that dispute”; ICJ, Case Concerning Armed Activities on the
Territory of the Congo (New Application: 2002) [Democratic Republic of Congo v.
[55] See P.M. DUPUY, L’unité de l’ordre juridique international, o.c., in which the theory of the two unities is the underlying thesis of the work.
[56] Ibid., pp. 215-245.
[57] To use the
terminology of the Statute of the International Criminal Court.
[58] I address
this issue in my article “La convention de