A Farewell to Fragmentation: Reassertion and Convergence in International Law

A Farewell to Fragmentation: Reassertion and Convergence in International Law
Contents
List of contributors
1 Introduction: from fragmentation to convergence in international law
	I. The project
	II. Three forms of fragmentation
		A. Substantive fragmentation
		B. Institutional fragmentation
		C. Methodological fragmentation and a fragmented method?
	III. How do the chapters contribute to the analysis of fragmentation and convergence?
		Part 1: Reassertion and convergence: ‘proliferation’ of courts and the centre of international law
			A: At the centre: the International Court
			B: ‘Regimes’ of international law
		Part 2: A farewell to fragmentation and the sources of law
			A: Custom and jus cogens
			B: Treaty interpretation
Part 1: Reassertion and convergence: ‘proliferation’ of courts and the centre of international law
A. At the centre: the International Court
2 Unity and diversity in international law
	Diversity in the making of international law
	Diversity in the application of international law
3 A century of international justice and prospects for the future
	I. Introduction: the emergence of international tribunals
	II. Lessons from the past
	III. The expansion of international jurisdiction
		1. International human rights tribunals
		2. International criminal tribunals
		3. General overview
		4. The contribution of expanded advisory jurisdiction
	IV. The move towards compulsory jurisdiction
	V. Emerging conceptions of the exercise of the international judicial function
	VI. The relevance of general principles of law
	VII. The awareness of the primacy of the jus naecessarium over the jus voluntarium
	VIII. International tribunals and jurisprudential cross-fertilization
	IX. Effects of the work of international tribunals
	X. Interactions between international and domestic law: the unity of the law
	XI. Concluding remarks: the tasks ahead, and prospects for the future
4 The International Court of Justice and human rights treaty bodies
	I. The juridical status of treaty body outputs
	II. Fragmentation?
	III. The general approach of the ICJ
	IV. Human rights issues addressed by the ICJ
		(i) Procedural issues
			a. Extra-territorial jurisdiction
			b. Jurisdiction in armed conflict
		(ii) Substantive issues
			a. Freedom of movement
			b. Liberty and security of person
			c. Reparation
			d. Ill-treatment of prisoners and universal jurisdiction regarding torture
			e. Fair hearing
	V. Conclusion
5 The ICJ and the challenges of human rights law
	I. Introduction
	II. The contribution of the court to the development of human rights law
		A. Minority rights and the Permanent Court of International Justice
		B. The ICJ and a hierarchical conception of human rights
			1) The concept of collective interest treaties
			2) The enrichment of the hierarchical terminology
			3) The source and content of fundamental norms
		C. Bridging human rights and IHL
			1) The articulation of the relationship between human rights and IHL
			2) Consequences of continuing applicability of human rights law in time of armed conflict
			3) Human rights and the jus ad bellum
	III. The linkages between human rights law and general international law
		A. Human rights and diplomatic relations and protection
		B. Human rights and criminal jurisdiction
		C. The relationship between State and individual responsibility for human rights violations
		D. The tension between human rights and immunities
	IV. Remedies for human rights violations
	V. Limitations of the Court in dealing with human rights issues
		A. The bilateral nature of State disputes
		B. Relations between the Court, non-State entities and human rights bodies
	Conclusion
6 Factors influencing fragmentation and convergence in international courts
	I. Introduction
	II. Identity of the court
		A. Permanent versus ad hoc
		B. Function
		C. Institutional context
	III. Substance of the law
		A. Treaty or custom
		B. Level of development
		C. Level of controversy and change
	IV. Procedure
		A. Fact-finding and evidence
		B. Drafting and reasoning process
		C. Precedent and dialogue
	V. Conclusion
B. ‘Regimes’ of international law
7 Fragmentation or Partnership? The reception of ICJ case-law by the European Court of Human Rights
8 Factors influencing the reception of international law in the ECtHR’s case law: an overview
	1. Preliminary remarks
	2. Factors influencing the reception of international law in the ECtHR
		2.1. International law was invoked at the domestic level
		2.2. Case intertwined with international law
		2.3. Need to harmonise a provision with international law
		2.4. Used in the drafting of the ECHR
		2.5. Uncertainty regarding international law
		2.6. Need to fill in gaps
		2.7. Textual and substantive similarities
		2.8. More specific guidelines available in international law
		2.9. Need to assess the human rights situation in a country
		2.10. Political issues and State interests
		2.11. More advantageous to use the ECHR
		2.12. Procedural and substantive law
		2.13. Ratification record
		2.14. Universal reach of international instruments
	3. Overview of the factors’ influence
		3.1. Pre-existing and technical reasons
		3.2. Need to improve and update the ECHR
		3.3. Common ground between the ECHR and international law
		3.4. Other factors
	4. A self-reinforcing, but not self-sufficient regime
	5. Ceterum censeo:Will the Court support a more central role for the ICJ?
9 The influence of the International Court of Justice on the law of provisional measures
	I. Introduction
	II. The constitutive instruments and the ‘prototype’ of the Permanent Court of International Justice
		A. Article 41 of the Statute of the Permanent Court of International Justice
		B. Article 41 of the Statute of the International Court of Justice
		C. Article 290 of the UN Convention on the Law of the Sea
		D. Article 47 of the Convention on the Settlement of Investment Disputes between States and Nationals of Other States
		E. Rule 39 of the Rules of the European Court of Human Rights
	III. Substantive preconditions to the award of provisional measures
		A. Prima facie jurisdiction as a barrier to provisional measures
			1. The International Court of Justice
			2. Dispute settlement under UNCLOS
			3. Investor-state arbitration under ICSID
			4. The European Court of Human Rights
		B. The purpose of provisional measures
			1. The International Court of Justice
			2. Dispute settlement under UNCLOS
			3. Investor-state arbitration under ICSID
			4. The European Court of Human Rights
		C. Urgency and irreparable prejudice
			1. The International Court of Justice
			2. Dispute settlement under UNCLOS
			3. Investor-state arbitration under ICSID
			4. The European Court of Human Rights
		D. The scope and force of provisional measures
			1. The International Court of Justice
			2. Dispute settlement under UNCLOS
			3. Investor-state arbitration under ICSID
			4. The European Court of Human Rights
	IV. Provisional measures and the problem of fragmentation
		A. Substantive fragmentation and the uniformity of provisional measures
		B. The future of provisional measures
	V. Conclusions
10 Just another case of treaty interpretation? Reconciling humanitarian law and human rights law in the ICJ
	1. Introduction
	2. The approach of the ICJ
		2.1. The case law
		2.2. An appraisal of the Court’s lex specialis approach
		2.3. The role of IHL in contemporary conflicts
	3. Conclusions
11 Fragmentation within international human rights law
	I. Fragmentation between and fragmentation within international legal regimes
	II. Potential for conflicts within international human rights law
		1. The proliferation of international human rights regimes and institutions
		2. Conflicts of jurisdiction and their avoidance through procedural safeguards
		3. Conflicts of jurisprudence and the danger of incoherence and incompatibility
			a. The shared normative content of the UN human rights treaties
			b. Conflicting rights, balancing rights
			c. Dimensions of conflict: substantive conflicts and institutional conflicts
	III. Freedom of speech and the international Convention on the Elimination of All Forms of Racial Discrimination
		1. The Sarrazin decision
		2. Critical assessment
	IV. UN human rights treaty bodies: facing fragmentation
12 The European Union’s participation in international economic institutions: a mutually beneficial reassertion of the centre
	1. The EU in multilateral international economic law: from the periphery to the centre
		1.1. The EU’s autonomy, a centrifuge force in international institutional law
		1.2. The EU’s participation in international economic institutions: back to the centre
	2. Reassertion by integration: participation as social recognition
		2.1. Mixed participation with member States resulting from the EU’s competences and self-restraint
		2.2. Multiple participation statuses resulting from the constitutional variety of host institutions
	3. Reassertion by obligation and surveillance: participation as social constraint
		3.1. Multilateral international economic law as a limit to the EU’s discretionary power
		3.2. Mutual strengthening through dispute settlement mechanisms
	4. Conclusion: a theoretical assessment
13 Reinforcing the ICJ’s central international role? Domestic courts’ enforcement of ICJ decisions and opinions
	Introduction
	Enforcement of ICJ decisions by domestic courts
		The VCCR cases (LaGrand, Avena, Avena II)
			The issues before US courts
		The Israeli Wall Opinion
			The issues before the Israeli Supreme Court
		Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening)
			The issues before the Italian court
	Domestic courts as enforcers of ICJ decisions and opinions?
Part 2: A farewell to fragmentation and the sources of law
A. Custom and Jus Cogens
14 The International Court of Justice and the international customary law game of cards
	1. Introducing the card players
	2. A clarification about the nature of the game
	3. States’ poker face and the quest for the ‘framework custom’
	4. The invisible college of scientific players (and disgruntled believers)
	5. The International Court of Justice’s soft play
	6. The showdown
15 State practice, treaty practice and State immunity in international and English law
	1. Introduction: State immunity at the crossroads of the fragmentation discourse
	2. The place of the restrictive doctrine of immunities in international law
		A. Statement of the problem
		B. The scope of the relevant practice
		C. The general essence of the restrictive doctrine
		D. Restrictive doctrine and criminal proceedings
		E. Upholding State immunity through the misapplication of the restrictive doctrine
		F. State practice and customary law in the balance
	3. The (IR)relevance of treaties on State immunity
	4. Immunities and human rights treaties
		A. Immunities and the European Convention on Human Rights
		B. Immunities and Article 1 of the 1984 Convention against Torture
	5. Immunities and normative hierarchy
		A. Conventional rules on the accountability for, jurisdiction over, and prosecution of, international crimes
			(i) Criminal jurisdiction and duty to prosecute under CAT
			(ii) Universal civil jurisdiction under Article 14 CAT
		B. State immunity and jus cogens
		C. Convergence between CAT and jus cogens
	6. The position at English law
		A. State immunity and policy considerations before English courts
		B. Common law and the doctrine of incorporation
		C. The impact of the 1978 State Immunity Act
		D. The doctrine of precedent
	7. Conclusion
16 Historical sketches about custom in international law
	Customary law as postulated by legal writers
	Customary law recognized by international judges: a new age for customary law?
B. Treaty Interpretation
17 Is there a subject-matter ontology in interpretation of international legal norms?
	I. Introduction
	II. General considerations on the legal regime of interpretation
	III. Factors for the modulation of interpretations
	IV. Salient particular subject-matters in the realm of interpretation of international law
	V. Conclusion
18 Halfway between fragmentation and convergence: the role of the rules of the organization in the interpretation of constituent treaties
	1. Introduction
	2. Rules of the organization and treaty interpretation in the preparatory works of the 1969 Vienna Convention
	3. Rules of the organization establishing a lex specialis on the interpretation of the constituent treaty
	4. Rules of the organization establishing the interpretation to be given to a provision of the constituent treaty
	5. Concluding remarks
19 The convergence of the methods of treaty interpretation: Different regimes, different methods of interpretation?
	1. Introduction
	2. Constitutional treaties, human rights treaties, ‘ordinary treaties’
		2.1 Human rights treaties
		2.2 Constitutional or constitutive treaties
		2.3 ‘Ordinary treaties’
	3. Systemic coherence in both content and method
		3.1. Coherence in content
		3.2. Coherence in method
	4. Conclusion
20 Reassertion and transformation of international law
	I. The International Court and the pressing problems of fragmentation
	II. An autonomous regime among others
		A. Diplomatic protection and the Nottebohm case
		B. Congo v. Uganda and Diallo in the ICJ
			1 Facts and findings in Diallo
			2 Developing consular protection and human rights
			3 Arbitrary expulsion and detention, and degrading and inhuman treatment in Diallo and in Belgium v. Senegal
			4 Companies and investor rights in Diallo: Barcelona traction and legal personality
			5 Remedies
			6 Sources of authority
	III. Conclusions: incremental transformation
Index