2. Does Proliferation of International Judicial Bodies Lead to the Fragmentation of International Law?

As this trend is multifaceted, the literature of the subject is too extensive as to be referenced in this context. Suffice it to mention here, e.g., Tate and Vallinder (1995)—for the political implications of the advent of the courts in the second half of the twentieth century; Sweet (2000)—for a European paradigm; Baudenbacher (2003)—for what is going on at more global level. In retrospect, taking into consideration where the courts started at the end of WWII on the ‘political’ spectrum, see e.g. Curran (2001).

As a result of the appearance of new states due to the process of decolonisation taking place in the fourth, fifth and sixth decades of the past century.

There are many examples of international judicial bodies having emerged in the last three decades, as courts and tribunals, quasi- judicial bodies, other dispute settlement bodies, which could be divided in adjudicative and non-adjudicative mechanisms. Examples of adjudicative bodies such as courts and tribunals: Court of Arbitration for Sport (1984); North American Commission on Environmental Cooperation (1993); NAFTA Dispute Settlement Panels (1994); Common Court of Justice and Arbitration of the Organization for the Harmonization of Corporate Law in Africa (1997); Arbitration and Mediation Center of the World Intellectual Property Organization (1994); the Iran–USA Claims Tribunal(1980); Marshall Islands Nuclear Claims Tribunal (1983); Eritrea-Ethiopia Claims Commission (2000); International Tribunal for the Law of the Sea (1996); World Trade Organization Appellate Body (1995); Court of Justice of the European Union (2010); Common Court of Justice and Arbitration of the Organization for the Harmonization of Corporate Law in Africa (1997); East African Court o Justice (2001); Court of Justice of the Economic Community of West African States (ECOWAS) (2001); International Criminal Court—ICC (2004); International Criminal Tribunal for the Former Yugoslavia—ICTY (1993); International Criminal Tribunal for Rwanda—ICTR (1995); Serious Crimes Panels in the District Court of Dili, East Timor (2000–2005); Panels in the Courts of Kosovo (2001); War Crimes Chamber of the Court of Bosnia-Herzegovina (2005); Special Court for Sierra Leone (2002); Extraordinary Chambers in the Courts of Cambodia (2006); Special Tribunal for Lebanon (2009).

Nicolaidis and Tong (2003), p. 1352.

Charney (1998a).

The term is similar in literature to ‘international judicial institution’, ‘international judicial organ’ or ‘international tribunal’.

Romano (2011). According to Romano, all bodies in the class of Non-Adjudicative Bodies (Mechanisms or Means) share the trait of producing outcomes that are not binding, called ‘reports’ or ‘recommendations’. These bodies are composed of States’ representatives and not independent experts and because they issue non-binding reports. For example: the UN Human Rights Council, or the United Nations Educational, Scientific and Cultural Organization (UNESCO) Committee on Conventions and Recommendations; Human Rights Bodies (e.g. the Inter-American Commission of Human Rights); International Review, Accountability, Oversight and Audit Mechanisms; Compliance Mechanisms of Multilateral Environmental Agreements; Bodies with Universal Scope (ILO Commission of Inquiry; ILO Committee of Experts on the Application of Conventions and Recommendations; ILO Conference Committee on the Application of Conventions; (UN) Commission on the Status of Women; ILO Governing Body Committee on Freedom of Association; (UN) Committee on the Elimination of Racial Discrimination; (UN) Human Rights Committee, UNESCO); Bodies with Regional Scope (Europe # Council of Europe; European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment; European Commission Against Racism and Intolerance; European Committee of Social Rights; Council of Europe European Commissioner for Human Rights; Committee of Expert on Issues Pertaining to the Framework Convention for the Protection of National Minorities; European Ombudsman; Inter-American Commission of Women; Inter-American Commission on Human Right; Committee on the Elimination of All Forms of Discrimination against Persons; African Commission on Human and Peoples’ Rights; The African Committee of Experts on the Rights and Welfare of the Child; Arab Commission of Human Rights; Arab Human Rights Committee; ASEAN Intergovernmental Commission on Human Rights etc).

Id (updated 2011). See for more examples of adjudicative bodies, supra note 3. The Orders of the class of International Adjudicative Means provided by Romano:

Romano (1998), p. 715.

Mosler (1980), p. 434. Mosler adds that an essential aspect of an ‘international body’ is the procedure on which it should be established: either on the basis of an international convention (such as the previous international courts—e.g. the PCIJ/ICJ, or established by the U.N. Security Council through a Chapter VII resolution of the U.N. Charter (e.g. the ICTY and ICTR). The author finds common criteria for judicial and arbitral settlement such as: (1) independence from the government and the parties; (2) equality of the parties in the proceedings; (3) objective rules to guide the judge in determining the law.

Many authors often resort to the expression: ‘international courts and tribunals’ when discussing ‘proliferation’ and its related ‘fragmentation’ issue, also in reference to all international judicial bodies.

Simma (2009), p. 278.

Spelliscy (2001), p. 150.

Article 95 of the Charter of the United Nations (1945).

U.N. Charter (1945), Art. 33, paragraph 1.

Han (2006), p. 105.

Rao (2003), p. 946 (commenting on various opinions of the ICJ’s judges on ‘proliferation’).

Charney (1998a), pp. 705–706.

Charney et al. (2002), p. 369. Charney assumes that the more states and other actors involved in disputes that exist, the more they will negotiate solutions that take account of law without instituting formal proceedings or before a final third-party decision is reached.

ILC (2006), p. 247. The ILC Study notes that the VCLT constitutes the main tool of unification of such regimes. And that such regimes being created as a result of treaties to which the Vienna Convention applies, they are bound together and coordinated by the Convention and General Principles of International Law.

Kingsbury (1998), p. 686.

Wellens (2003), p. 1159. The author gives as example the role of the case law of the International Administrative Tribunals; the ICJ; ECtHR; CJEU (Court of Justice of the European Union), and domestic courts.

Simma (2009), p. 279.

Spelliscy (2001), pp. 174–175. The author mentions, for example, the decision of the Appeals Chamber of the ICTY in the Tadic case.

See e.g. Jacobs (2003).

Charney (1998a), p. 700.

Spelliscy (2001), p. 170.

See e.g. Guillaume (2000)—commenting on various opinions of the ICJ’s judges on ‘proliferation’; or Charney (1998a)—referring to Judge Oda as a scholar and a negotiator of the Law of the Sea Convention.

I.e., as result of the overlapping jurisdictions, forum shopping, etc.

Janis (1999), p. 11; see also Janis (2010), p. 127. Janis points out that ‘International Law in the meaning of the term as used in modern times did not exist during antiquity and the first part of the Middle Ages. It is in its origin essentially a product of Christian civilization, and began gradually to grow from the second half of the Middle Ages. But it owes its existence as systematized, body of rules to the Dutch jurist and statesman Hugo Grotius’.

In the narrowest sense, for example, ‘international law’ was stated by the PCIJ in the Lotus case (1927): as governing relations between independent States.

E.g. Austin (1995).

E.g. Morgenthau (1940, 1948) and Slaughter and Ratner (1999).

Oppenheim (1912), para 13. It was considered the law between States and not above them.

Id, para 5. The concept of community in the view of the author covers not only a community of individual men, but also a community of individual communities such as individual states (i.e. a confederation of states is a community of states).

See for this discussion, e.g., An introduction to subjects of international law for students (available at: https://​ruwanthikagunara​tne.​wordpress.​com/​2011/​03/​26/​1-2-an-introduction-to-subjects-of-international-law/​). Some argue that international non-governmental organisations and multinational companies also fall into the category of subjects of international law.

Kamminga (2008), p. 2.

Detter (1994), p. 1.

Hart et al. (1994), p. 92.

Hart et al. (1994), pp. 116–117. Thus for Hart, the basic rule of recognition of the primary rules is that they are ‘binding if they are accepted and function as such’.

Payandeh (2010), p. 994. The author claims that international legal order is built on an international legal system ‘just as the national polity is governed by a municipal legal system’.

Kelsen (2003), p. 303. Also in a wider sense (lato sensu), by ‘sources’, Kelsen admits all those ideas which actually influence the law creating organs (e.g. moral norms, political principles, legal doctrine, the opinio juris of jurists, experts, etc), however they do not have character of law and thus binding force.

See e.g. Oppenheim (1912), para 17; Kelsen (2003), p. 307; Verdross (1949), p. 435; Brierly (1955).

Oppenheim (1912), para 17.

Kelsen (2003), p. 308. According to Kelsen, customary law has binding force which relies precisely on the hypostudy that international custom is a law-creating fact.

Ciobanu (1991), p. 20. See Fisheries Case (United Kingdom v. Iceland), Judgment of 2 February 1973, ICJ; also North Sea Continental Shelf Cases, supra note 77.

Id. As observed by Ciobanu customs are thought to be: general, regional and local, depending of the region which generates them, and also of the number of participants of the custom’s formation. He mentions, for example, that until the codification of diplomatic law in 1961 by the Vienna Convention, many of the rules codified by this Convention, such as those regulating diplomatic immunity, consisted in general customs. Diplomatic asylum in Latin countries is seen by some writers as based on a regional custom.

Ciobanu (1991), p. 23. It is known that the ILC, as a principal organ of the U.N., established in 1947 by the General Assembly, was charged with promoting the progressive development of international law and its codification. According to Ciobanu, all modern conventions of customary law codification contain elements of progressive development of those rules content. For example, the author mentions those progressive developments of the content of customary rules (which are reaffirmed in writing) that could be tracked back to the years preceding the adoption of the Napoleonic Code (1804): in the writings of the members of the codification commission, and, in special, in the writings of Pothier, the president of that commission. The author makes clear that the customary rules codified in conventions are not to be seen identical with the unwritten rules (customs), which formed the object/source of codification.

Kammerhofer (2004), p. 3 (emphasis added).

Oppenheim (1912), para 18.

Kelsen (2003), p. 314.

Hoof (1983), p. 117.

Id. According to the author, pacta sunt servanda constitutes the source of all the law created by treaties, notably the ‘conventional law’.

It is well known that states transact a vast amount of work and interests by using the means of treaties: disputes, peace, wars, territory delimitation or acquired, special interests between states, creation of international institutions and adjudicative mechanism, etc.

Oppenheim (1912), para 18. The author notes that treaties create law for the contracting parties only, and, however, their law achieve universal character when all the members of the Family of Nations are parties to those treaties.

According to Oppenheim other sources of international law such as opinions of famous writers on international law, decisions of courts, arbitral awards, instructions issued by various States for guidance of their diplomatic and other organs, State papers concerning foreign politicians, certain municipal laws, decisions of municipal courts.

The ICJ is thought to be contributed more than any other court to developing principles of international law, as well as to confirming other sources of international law.

Shaw (2008), p. 105. This aspect will be illustrated inter alia in Chap. 3 of this book.

Dworkin (2013), p. 5. If no state can be forced to cooperate, according to Dworkin, then ‘they will all have a reason not to participate’. Thus, ‘consent’ in Dworkin’s view ‘is neither a necessity nor a sufficient ground of legitimacy’ for international law.

Id, p. 21. Dworkin claims that the sources of international law (Article 38 of the ICJ Statute) flow, not from consent, but ‘from the moral demands, on which the legitimacy of an international system depends’.

Shaw (2008), p. 113.

Id, p. 120. Shaw notes that the ILC drafts are important source of international law since: it is involved in at least two major sources of law, its drafts may form the bases of international treaties; its work is part of the whole range of state practice, which can lead to new customary law; its drafts may constitute evidence of custom, contribute to the corpus of usages which may create new law and evidence the opinio juris.

Art. 38 of the ICJ provides: ‘1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply:

a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states;

b. international custom, as evidence of a general practice accepted as law;

c. the general principles of law recognized by civilized nations;

d. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.

2. This provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties agree thereto.’

ILC Conclusions of the Work of the Study Group on the Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International law (2006) adopted by the ILC. The Study Group’s Conclusions appear at Rep. of the Int’l L. Comm’n, 58th Sess, May 1–June 9, July 3–Aug. 11, 2006, pp. 407–423, U.N. Doc. A/61/10; GAOR, 61st Sess., Supp. No. 10 (2006), paras 31–32.

Bassiouni (1996), p. 67. The author claims that some scholars see jus cogens sources and customary international law as the same.

ILC Conclusions (2006), para 33.

Bassiouni (1996), p. 68. Bassiouni gives examples of sources in which jus cogens is stated: The 1993 International Tribunal For the Former Yugoslavia and the 1994 International Tribunal for Rwanda statutes (the Statute of the International Tribunal for the Former Yugoslavia, U.N. SCOR, 48th Sess., 3217th mtg., at 1, U.N. Doc. S/RES/827 (1993) and the Statute for the International Tribunal for Rwanda, U.N. SCOR, 49th Sess., 3453rd mtg., at 1, U.N. Doc. S/RES/955 (1994)), address Genocide, Crimes Against Humanity, and War Crimes. The 1996 Code of Crimes includes these three crimes plus Aggression. See, e.g., Draft Code of Crimes Against Peace and Security of Mankind: Titles and Articles on the Draft Code of Crimes Against Peace and Security of Mankind adopted by the International Law Commission on its Forty-Eighth Session, U.N. GAOR, 51st Sess., U.N. Doc. A/CN.4L.532 (1996), revised by U.N. Doc. A/CN.4L.532/Corr. 1, and U.N. Doc. A/CN.4l.532/Corr. 3; Crimes Against U.N. Personnel, in M. Cherif Bassiouni, International criminal law conventions (1997 in print). Also the 1969 Vienna Convention on the Law of the Treaties has given the recognition of the norms of jus cogens in Article 53.

For a discussion on the PCIJ/ICJ’s recognition of the jus cogens norms, see, e.g., cases such as: Oscar Chinn Case, 1934, PCIJ, S.AB 63, 12 December, 1934; For the opinion of the ICJ, see, e.g. Reservation to the Convention on the Prevention and Punishment of the Crime of Genocide, 1951, I.C.J., 15 (May 28); Application of the Convention of 1902 Governing the Guardianship of Infants (Neth. v. Swed.), 1958, I.C.J. 55 (Nov. 28) (separate opinion of Judge Quintana); Right of Passage Over Indian Territory (Port. v. India) 1960 I.C.J. 6 (Apr. 12) (separate opinion of Judge ad hoc Fernandes); South West Africa Case, Second Phase (Eth. v. S. Afr.; Liber. v. S. Afr.) 1966, I.C.J. 6 (July 18) (separate opinion of Judge Tanaka); North Sea Continental Shelf Cases (F.R.G./Den. v. F.R.G./Neth.) 1969, I.C.J. 3 (Feb. 20) (separate opinion of Judge Nervo); Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), 1986, ICJ (Jun. 27); Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosn. and Herz. v. Serb. And Mont.), 2007, I.C.J. (Febr. 26).

ILC Conclusions (2006), para 35.

Article 53 of the VCLT provides: ‘Treaties conflicting with a peremptory norm of general international law (jus cogens)’:

A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. For the purposes of the present Convention, a peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.

See Verdross (1966), p. 57 on this point. According to the author, the ILC refrained to include any examples of jus cogens norm, for two reasons: first because it may lead to misunderstanding as the position of others possible cases; and second, because a complete list of such rules was impossible without a prolonged study on this matter. He states that some members of the Commission considered that ‘no definition is necessary, because the idea of jus cogens is clear in itself’.

Schwelb (1967), p. 948. According to Schwelb, it was Gerald Fitzmaurice and Humphrey Waldock who introduced the concept of consistency with a general rule or principle of international law having the character of jus cogens, which Hersh Lauterpach proposed for codification in the law of treaties.

Id. According to Schwelb, it was Gerald Fitzmaurice and Humphrey Waldock who introduced the concept of consistency with a general rule or principle of international law having the character of jus cogens, which Hersh Lauterpach proposed to codification in the law of treaties.

Petsche (2010), p. 237. In the author’s view, jus cogens definition in the VCLT is ‘at best useless and at worst harmful’, even giving rise to serious difficulties in its application in the practical conduct of international relations.

Petsche (2010), p. 237. Petsche notes that jus cogens was fundamental in creation and justification of international tribunals, i.e., Tokyo and Nuremberg Tribunals—which mission implied a violation of the cardinal criminal law principle of nullum crimen, nulla poena sine lege (no crime, no penalty without law).

Id, p. 272. Here, the author underlines the idea that the initial State centered approach of peremptory norms of international law, which focus of the vital State interest’s preservation, ‘has given way to a more individual-centered notion of jus cogens’.

Verdross (1966), p. 56. Verdross shares the opinion of those writers who defend the idea that all treaties against the public order of international community are null and void (e.g., an agreement defending slavery, preventing the development of individual liberty, etc).

Id. According to Verdross the rights and obligations created by jus dispositivum rules concern only individual States inter se. The author cites the advisory opinion in the Genocide case (1950), where the ICJ recognised these two categories of rules.

Id. Verdross mentions in this regard norms of jus cogens existent in those treaties concluded in violation of the conventions concerning slavery, traffic of women and children, rights of prisoners of wars are void.

Hossain (2005).

(Meaning from Latin: ‘towards all’) Erga omnes obligations are defined in Article 1 of the Resolution of the Institute of International Law, Fifth Commission, Obligations and rights erga omnes in international law, Rapporteur M. Giorgio Gaja, 2005.

The obligatio erga omnes concept is held by the ICJ in e.g. Barcelona Traction, Light and Power Co. Ltd. (Belgium v. Spain), 1970, I.C.J. 3, 32 (Feb 5). The ICJ stated in Barcelona (1970), that the first criterion of an obligation rising at the level of erga omnes is ‘the obligation of a state towards the international Community as a whole’. Also in Reservation to the Convention on the Prevention and Punishment of the Crime of Genocide, 1951; South West Africa Cases (Ethiopia v. South Africa; Liberia v. South Africa), 1963, I.C.J Rep. 310 (Dec. 21).

ILC Conclusions (2006), para 37.

Dupuy (1998), p. 791. For example, Dupuy mentions the growing role of non-State actors, such as non-governmental organisations (NGOs), and the effort to improve the efficiency of public international obligations, with the establishment of some ‘follow-up machineries’, in particular, in the fields of human rights, international economic law, international trade law, and international environmental law.

See also, e.g., Simma (2009) for remarks on this point.

Prost (2012), p. 13.

Kelsen (1970), p. 205.

Simma (2009), p. 271.

Koskenniemi (2007), pp. 17–18.

See for commentaries on Article 55: Draft Articles on Responsibility of States for Internationally Wrongful Acts, with commentaries (2001)—as part of Commission’s report covering the work of that session (A/56/10).

Pulkowski (2005), p. 3 (emphasis added).

Schermers and Blokker (2011), p. 27.

Pulkowski (2005), p. 13.

Prost (2012), p. 1.

Id, p. 17.

Id, p. 30.

See e.g. Wellens (2003), Abi-Saab (1998), van Eikema Hommes (1978), Simma (1985), Spelliscy (2001).

Dupuy (1998), p. 791.

Simma (2009), p. 277 (emphasis added). E.g. Application of the Convention of the Prevention and Punishment of the crime of genocide (Bosnia Herzegovina v. Serbia and Montenegro), Judgment of 26 February, 2007; Legal Consequences of the Construction of a wall in the Occupied Palestinian Territory, Advisory Opinion of 9 July 2004, ICJ Reports 136. This aspect will be further discussed in Chap. 3 of this book.

Finnis (1992), p. 153. What keeps a legal system to be legally in shape, as Finnis claims, is the Rule of Law, which involves ‘certain qualities of process which can be systematically secured only by institutions of judicial authority … and its exercise by persons professionally equipped and motivated to act according to law’.

Prost and Clark (2006).

Van Eikema Hommes (1978), p. 43.

Koskenniemi (2007), p. 25.

Rayfuse (2005), pp. 688–689.

ILC (2006), p. 15.

Dupuy (1998), p. 792.

ILC (2006), p. 15.

Wellens (1994), p.28. (emphasis added).

Han (2006), p. 119.

Koskenniemi and Leino (2002), p. 561. For more on this view, see, e.g., Benvenisti and Downs (2007).

Report of International Law Commission, Fifty-fifth session, Supplement No. 10 (A/58/10), 2003, p. 17. This study is of great importance in the process of understanding the fragmentation of international law phenomenon, by analysing the difficulties arising from the diversification and expansion of international law. Further, the ILC focused on the ‘Function and scope of the lex specialis rule and the question of “self-contained regimes”’ (2004). The Study Group found of significant importance to their analysis: ‘The Interpretation of Treaties in the light of any relevant rules of international law applicable in relations between parties’ (article 31(3)(c) of the Vienna Convention on the Law of Treaties); ‘the modification of multilateral treaties between certain of the parties only (article 41 of the Vienna Convention on the Law of the Treaties) as well as the final report on “Hierarchy in International Law: jus cogens, obligations erga omnes, Article 103 of the Charter of the United Nations as conflict rules”’. This is a report of the Study Group produced in the course of 4 years of work (2003–2006).

ILC (2006), p. 11.

Charney (1998a), p. 700.

Id, p. 134. For example, Charney illustrates variations in approaches on particular areas of international law (which are observed by the author not as discontinuities or radical deviations from the traditional international law doctrine), less resolved or explored at the following courts: the Court of Justice of European Union, which had numerous opportunities to apply general principles of international law, and on other occasions it has identified novel general principles, which however may have limited value, not creating incoherence with the substance of general principles of law; at the Iran-United States Claims Tribunal, which had the occasion to explore two areas of contemporary international law in greater depth than other tribunals (i.e. compensation for takings and dual nationality), but the tribunal adhered to the body of substantive international law; at the European Court of Human Rights the determination that territorial reservation to the Court’s jurisdiction in the Loizidou case (1995) was considered severable, since Turkey’ s consent to the compulsory jurisdiction was validated by the ECtHR. To the question whether the ECtHR applied a different approach in matter of ‘territorial reservation’, deviating from the jurisprudence of the ICJ on this matter, Charney notes that the ICJ had not clearly elucidated this issue, for the ECtHR to be consistent with.

Martineau (2009), p. 3.

Guillaume (2000).

Koskenniemi and Leino (2002), p. 562.

Guillaume (2000). The author states that overlapping jurisdiction also exacerbates the risk of conflicting judgments, as a given issue may be submitted to two courts at the same time, and they may hand down inconsistent judgments.

Charney et al. (2002), p. 371.

Id. See for an illustration of this point, e.g., The Southern Bluefin Tuna case (Australia and New Zealand/Japan), (Jurisdiction and admissibility constituted under annex VII of the United Nations Convention on the Law of the Sea) Award of 4 August 2000.

Petersmann (2006), p. 273.

Linton and Tiba (2009), p. 407.

Electa una via, non datur recursus ad alteram, is translated by the legal dictionary as ‘When there is concurrence of means, he who has chosen one cannot have recourse to another’ (10 Toull. n. 170).

Principle of finality—when there has been issued a final judgment upon a dispute, and it is no longer subject to appeal.

Romano (2006), p. 798. See more on this point, e.g., Romano (2001)—for a discussion on the Southern Bluefin Tuna case (Australia and New Zealand/Japan), (Jurisdiction and admissibility constituted under annex VII of the United Nations Convention on the Law of the Sea) Award of 4 August 2000. In short, the applicants had a choice of judicial fora to initiate proceedings: before an ad hoc Arbitral tribunal constituted under Article 16 of the 1993 Convention; before the ICJ; or before the dispute settlement procedures of the UNCLOS. Southern Bluefin Tuna is an unprecedented instance of deviation from what has been in the past seemed a fundamental principle of the privacy of arbitration proceedings. Also Chile – Measures Affecting the Transit and Importation of Swordfish (European–Community v. Chile), WT/DS183/1, 19 April 2000. This case is considered in the literature as likely to make history, for the reason that it is an exception to the traditional custom of resorting to arbitration only by mutual agreement, and because it is one of the first cases after UNCLOS’s entry into force in which the parties could made a choice of forum on the same dispute matter. Or, the MOX Plant case (Ireland. v. United Kingdom), Request for Provisional Measures, 41 I.L.M.405, ITLOS, Case No. 10, Order of Dec. 3, 2001. This case shows a situation that involved three different international adjudicative bodies seized by Ireland, and thus three different institutional procedures.

Brown (2002), p. 463.

ILC (2006), pp. 12–13.

Id, p. 614. The ILC Study gives examples of conflict of norms such as lex specialis and lex generalis in The Legality of the Threat or Use of Nuclear Weapons, Advisory opinion, ICJ Reports 1996, where the ICJ had to decide between different set of rules, and none of these could fully extinguish the other. The Court held that human rights law continued to apply within armed conflict. Humanitarian law as lex specialis did not suggest that human rights to be abolished. Also, in the Case Concerning Gabcikovo-Nagymaros Project (Hungary v. Slovakia), ICJ Report, 1977, the Court considered the 1977 Treaty (as lex specialis) on a superior position, which led to the Court’s setting aside other treaty and general law. Or, when conflict exists between lex specialis norms, such as in European Communities-Measures Concerning Meat and meat Products (Hormones) (United States v. European Communities), WT/DS26/AB. WT/DS48/AB/R, 13 February 1998. In this case the Appellate Body of the WTO concluded that whatever the status of the principle ‘under international environmental law’, it had not been binding upon the WTO. The ILC points out that ‘environmental law’ and ‘trade law’ might be governed by different principles.

See, e.g., ILC (2006), p. 614; Simma (2009), p. 275.

ILC (2006), p. 408.

North Sea Continental Shelf (Federal Republic of Germany/Denmark; Federal Republic of Germany/Netherland), ICJ Reports, 1969, p. 42, para 72.

ILC (2006), p. 45. See also Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, ICJ Reports 1986, p. 137, para 274. The ICJ held in Nicaragua that: ‘[i]n general, treaty rules being lex specialis, it would not be appropriate that a State should bring a claim based on a customary rule if it has by treaty already provided means for settlement of such a claim’. Or, in Amoco International Finance Corporation v. Iran (Amoco v. Iran), Iran–US CTR., vol. 15, 1987-II, p. 222—where the US Claims Tribunal held that, despite recognising lex specialis the Treaty as superseding the lex specialis, ‘the rules of customary law may be useful in order to fill in possible lacunae of the Treaty …’.

Under Article 31(3)(c) of the Vienna Convention on the Law of Treaties, which will be discussed in the next chapter.

ILC (2006), pp. 408–409. According to the ILC, the principle of harmonisation ‘is a generally accepted principle that when several norms bear on a single issue they should, to the extent possible, be interpreted as to rise to a single set of compatible obligations’.

Id, p. 53. The ILC Study identifies four different situations of lex specialis’ operationalisation: (a) within a single instrument; (b) between two different instruments; (c) between a treaty and a non–treaty standard; and (d) between two non-treaty standards.

ILC Conclusions (2006), para 32.

Michaels and Paulwelyn (2011), p. 375.

Id. The authors mention, i.e., GATT Article XXIV which provides that trade agreements such as NAFTA are subject to certain GATT principle, setting up the GATT as lex superior, and on the other side, Article 103 of NAFTA states that in the event of conflict between GATT and NAFTA, NAFTA prevails.

ILC Conclusion (2006), para 21.

ILC (2006), p. 15.

See for example authors mentioned in Sect. 2.3, part II of this chapter.

Simma and Pulkowski (2006), p. 491. The authors state in this regard: ‘Social system cannot exist in splendid isolation from their environment. This point is conceded even by ardent proponents of regime specialization. According to Niklas Luhann’s System theory, for example, all systems are to some extend interlinked by structural coupling. Similarly, legal subsystems coexisting in isolation from the remaining bulk of international law are inconceivable.’

Id. The authors refer to the ‘Tehran Hostages’ case (United States Diplomatic and Consular Staff in Tehran), ICJ Reports (1980). The ICJ ruled in this case that the ‘diplomatic law constitutes a self-contained regime’.

Draft Articles on Responsibility of States for Internationally Wrongful Acts (2001, p. 140, paras 2 and 5). The ILC admits that Article 55 constitutes an important indication (although it is one of a number of possible approaches) for ‘determining which of several rules potentially applicable is to prevail or whether the rules simply coexist’. Article 55 (Lex specialis) provides:

These articles do not apply where and to the extent that the conditions for the existence of an internationally wrongful act or the content or implementation of the international responsibility of a State are governed by special rules of international law.

Teitel and Howse (2008), p. 5. See also on this case discussion: ILC (2006), p. 31. Examining the judgment in Nicaragua (ICJ, 1986), the ICTY held in Tadic that the ‘effective control’ was a too high threshold for holding an outside power legally responsible for domestic unrest. For the ICTY, it was sufficient that the power had ‘a role in organizing, coordinating, or planning the military actions of the military group, so that the power exercised “overall control” over the military for the conflict to be an “international conflict”’.

Id (in the Prosecutor v. Tadic case (Jurisdiction), 1996, 35 ILM 32, p. 39).

ILC (2006), p. 31. See the ‘Tehran Hostages’ case (1980), p. 38.

S.S. Wimbledon (1923). The Court held in ‘S.S. Wimbledon’ that: ‘The provisions relating to the Kiel Canal in the Treaty of Versailles are therefore self-contained; if they had to be supplemented and interpreted by the aid of those referring to the navigable waterways of Germany in the previous Section of Part II, they would lose their “raison d’etre”…’.

ILC (2006), p. 67.

Runersten (2008), p. 12. See also for this argument ILC (2006), p. 289. The ILC points out that States were entitled to set up self-contained regimes on State responsibility, but such regimes, actually, have never been considered as to form ‘closed legal circuits’.

ILC (2006), pp. 68–70. For example, the ILC quoting Simma (1985), pp. 115–116, notes that subsystems are seen as self-contained when, for example, intent to ‘exclude more or less totally the application of general legal consequences of wrongful acts, in particular the application of the counter measures normally at the disposal of an injured party’.

Id. See also on this point Koskenniemi and Leino (2002).

Kaufman (2011), p. 253. See also for the same argument Cho (2006).

McRae (2004), p. 3. McRae argues that due to the procedures of the Appellate Body such as ‘burden of proof’, ‘judicial economy’ and ‘completing the analysis’, which were not based on procedural law development in other existing tribunals, there is no risk of overlapping jurisdiction of the WTO dispute settlement body and of other courts and tribunals.

Leal-Arcas (2010), p. 597.

ILC (2006), p. 82.

Id, p. 81 (emphasis added). The ILC’s observance based on the commentary on Article 55, relating to Draft Articles on State Responsibility (2001), p. 375, para 2. See on this point also Third Report on State Responsibility (1991), p. 26, paras 85–86. In particular, according to the Special Rapporteur, Arangio-Ruiz, the question which arises when speaking of so called ‘self-contained’ regimes, is ‘whether the existence of remedies, sometimes more advanced- for which they make specific provision- affects to any degree the possibility for legal recourse by States parties to the measures provided for, or otherwise lawful, under general international law’.

Sheeran (2014), p. 90 (‘GIL’—general international law; ‘IHRL’—international human rights law). The author refers, e.g., to the Bankovic, Al Adsani, Fogarty, McElhinney cases.

Id. See, for example, Neumeister v. Austria (ECtHR), Series A, No. 17, 1975, at paras 28, 30, 31) mentioned by the ILC (2006) in its comments on (lex specialis) Article 55 of Report on Draft Articles on Responsibility of States for Internationally Wrongful Acts (2001). The ECtHR stated in Neumeister that lex specialis did not prevail over lex generalis in regard to that particular (human right) provision related to compensation. In the Court’s words: ‘the European Convention of Human Rights for compensation for unlawful arrest or detention did not prevail over the more general provision for compensation in article 50. In the Court’s view, to have applied the lex specialis principle to article 5, para 5, would have led to “consequences incompatible with the aim and object of the Convention”.’

ILC (2006), p. 87.

Behrami and Behrami v. France and Saramati v. France, Germany and Norway (App. Nos. 71412/01 and 78,166/01), ECHR, Decision on May 2007.

See discussion on this topic, e.g., Charney (1998a, b), Sheeran (2014).

ILC (2006), p. 85 (emphasis added).

Id, p. 84. See also on this point, e.g., Higgins (2007). According to Higgins, the opinions that human rights bodies or the Human Rights Committee depart from general rules in respect of ‘reservations’ are merely aberrations.

Id, p. 33. See also the opinion of Charney (1998a, b) on this case and, also, in the Loizidou case (Loizidou v. Turkey), Preliminary Objections, Judgment of 23 March 1995, ECHR, Series A (1995) No. 310, p. 29, para 67. In brief, the ECtHR stated in Loizidou that the normal rules of reservations to treaties (thus under general international law) did not apply to human rights law.

Loizidou (1995). See this case discussed in Chap. 5 of this book.

Blome (2010), p. 14. This relationship was confirmed by the former president of the Inter-American Commission, Paolo Carozza (Carozza 2009: 50th anniversary of the ECHR), in his statement:

The historical influences have, not surprisingly, flowed primarily westwards from Europe across the Atlantic (…). For instance the Inter-American Commission … was consciously inspired by and the new defunct European Commission (…) Turning to the substantive law, the influence of Europe on the norms and jurisprudence of the Inter-American Human Rights System, are multiple. Same view is shared by Judge Trindade, or, also, Judge Tulkens, who stated that: “international human rights law in the twenty first century is a complex network of overlapping systems of law”.

African Court on Human and Peoples’ Rights (AfCHPR) (available at: http://​www.​african-court.​org/​en/​index.​php/​partners/​2012-03-09-15-11-49/​european-court-of-human-rights-and-inter-american-court-of-human-rights). The AfCHPR and IACtHR have now together a Memorandum of understanding and guide for their collaboration. The AfCHPR also collaborates with the ECtHR, having exchange of staff, information and general collaboration.

Blome (2010), p. 14. The author observes that from a total of 213 decisions and judgments as of July 2010, the IACtHR showed 132 references to the European system of human rights. However, the IACtHR is searching its own path and aspires to equal participation in an emerging international human rights system.

Charney (1998b), p. 142.

Kamminga (2008), p. 245. See Kamminga’s analysis on ‘state responsibility’ at the ECtHR taken comparatively with ‘state responsibility’ notion analysed at the ICJ.

Id, p. 252. Kamminga cites in this support, e.g., LaGrand (Germany v. United States of America), Merits, Judgment of 27 June, 2001, ICJ Reports 466.

Sheeran (2014), p. 94. According to the author, there are three areas in which human rights law impacted positively general international law and its rules on states responsibility: development of positive obligations; the law of attribution; and reparations and remedies.

Koskenniemi (2004), para 134. In brief, the ILC admits (at p. 85) the compliance, in general, of treaty bodies in human rights (such as the European and Inter-American Courts), and also in trade (WTO panels and the Appellate Body) with rules and principles of general international law (relating to, i.e., treaty interpretation, statehood, jurisdiction, immunity, as well as a wide variety of principles of procedural propriety).

Khrebtukova (2008), p. 51.

Fry (2007), p. 77.

Ghandhi (2011), pp. 527–528. The author mentions the ICJ’s contribution to international law of human rights on fields such as genocide, race discrimination, self-determination, immunities of experts, consular access, belligerent occupation, nuclear weapons, and diplomatic protection. See for example the Advisory Opinion on the Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion, I.C.J., Advisory Opinion, 1951 I.C.J. 15), Polish Upper Silesia case (Germany v. Poland), PCIJ, Rep. Series A No. 7, 1926.

Ghandhi (2011), p. 538. The author notes that the Diallo case was essentially a human rights case, and the first time in the history of the ICJ, the Court decided a case on the basis on an international human rights treaty, a regional human rights treaty, in addition to the relevant provision of the Vienna Convention on Consular Relations, also belonging to the domain of the international protection of human rights.

Also, it is to be reminded the PCIJ/ICJ’s earliest practice in dealing with human rights issues, when there were no rooms in international instruments for human rights, as it will be illustrated inter alia in Chap. 4 of this book.

El Sheemy (2007), p. 5. See also The Legality of the Threat of Use of Nuclear Weapons, Advisory Opinion (1996), ICJ Reports 226.

Did not find Serbia having ‘effective control’ of the Bosnian-Serb paramilitary forces.

See on this point Kamminga (2008), p. 249.

Cottier et al. (2005), p. 5.

Id. In this respect the authors mention the Hertel v. Switzerland, 59/1997/843/1049, ECtHR Judgment of 25 August 1998. This case explores the relation between unfair competition and the importance of free speech and freedom of information as a means to secure symmetry of market information, thus the functioning market economy.

This reference is to be found in: the Annex Relating To The Implementation Of Part XI of the Convention (UNCLOS), in Section 6 concerning Production Policy, which provides at ‘(b) The provisions of the General Agreement on Tariffs and Trade, its relevant codes and successor or superseding agreements shall apply with respect to activities in the Area’.

Petersmann (2006), p. 273. The author notes that since 1990, an increasing number of new worldwide courts have been established, each having jurisdiction that overlap or interact with the WTO jurisdiction. However, he asserts that jurisdictional clashes among courts and tribunals and judicial challenges to the WTO jurisdiction have been avoided so far.

See ILC (2006), p. 79. The ILC citing Arangio-Ruiz, who concludes that there is no such hermetically regimes isolated from international law.

Koskenniemi and Leino (2002), p. 575.

See on this question Martineau (2009).

Pulkowski (2005), p. 3 (emphasis added).