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Diversity in secondary rules and the unity of international law: some reflections on current trends*

Published online by Cambridge University Press:  07 July 2009

K.C. Wellens
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Extract

During a meeting of our Editorial Board which took place as far back as October 1990, we found ourselves debating the question whether closed or semi-closed systems as they could be seen to emerge in various fields of international law (e.g., GATT practice, community legal order) would become a potential risk, constituting a threat to the global unity and efficacy of the international legal order. Bruno Simma's thorough and stimulating analysis in the 16th issue of this Yearbook (1985) entitled ‘Self-contained Regimes’ additionally fuelled the very early stages of our preliminary thoughts with regard to the scope and implications of the question raised.

Type
Diversity in Secondary Rules and the Unity of International Law
Information
Netherlands Yearbook of International Law , Volume 25 , December 1994 , pp. 3 - 37
Copyright
Copyright © T.M.C. Asser Press 1994

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References

1. Hart, H.L.A., The Concept of Law (1961).Google Scholar

2. It may be added in this regard that the ICJ in constituting, in July 1993, a Chamber of the Court for Environmental Matters referred, inter alia, to ‘the developments in the field of environmental law and protection’ (emphasis added).

3. Brownlie, I., ‘The Reality and Efficacy of International Law’, 52 BYIL (1981) pp. 1–8.Google Scholar

4. Hart, op. cit. n. 1, at pp. 78–79.

5. Ibid., at pp. 90–91.

6. Ibid., at p. 92.

7. Ibid. On the rules of recognition in international law see recently Charney, J., ‘Universal International Law’, 87 AJIL (1993) pp. 529–551.CrossRefGoogle Scholar

8. Ibid., at p. 93.

9. Ibid., at p. 94.

10. Ibid., at pp. 93–96.

11. And in its 1986 counterpart: the Convention on the Law of Treaties between States and International Organisations.

12. Bert Vierdag's article, pp. 125–126.

13. Bert Vierdag's article, pp. 130–134.

14. For a more detailed overview of the problems involved in treaty amendment in international law see Bruno de Witte's article, section 2.

15. Malgosia Fitzmaurice's article, p. 194.

16. Bruno de Witte's article, p. 312 et seq.

17. Ibid., at p. 332.

18. Harris, D.J., Cases and Materials on International Law, 4th edn. (1991) p. 460.Google Scholar

19. Kamminga, M., Inter-State Accountability for Violations of Human Rights, doctoral thesis (1990) p. 4.Google Scholar

20. Bert Vierdag's article, p. 136.

21. See further the symposium: Countermeasures and Dispute Settlement: The Current Debate within the ILC, EJIL (1994) pp. 20–119.

22. 1969 Vienna Convention on the Law of Treaties, Art. 60, para. 5.

23. Art. 14(1)(b) reads: ‘any conduct which (i) is not in conformity with the rules of international law on the protection of fundamental human rights; …’

24. Art. 14 reads: ‘An injured State shall not resort, by way of countermeasure to: … (d) any conduct which derogates from basic human rights; … ’

25. On the difficulty of defining a ‘human rights treaty’ see further Bert Vierdag's article in this volume.

26. ICJ Rep. (1980) p. 42, para. 91.

27. Compare any conduct which ‘is of serious prejudice to the normal operation of bilateral or multilateral diplomacy’ (Special Rapporteur) with ‘any conduct which infringes the inviolability of diplomatic or consular agents, premises, archieves and documents’ (Drafting Committee).

28. Bruno de Witte's article, p. 301.

29. GA Res. 2625 (XXV).

30. GA Res. 2625 (XXV) and GA Res. 37/10. Manila Declaration on the Peaceful Settlement of International Disputes.

31. La Valetta Principles for dispute settlement and provisions for a CSCE procedure for peaceful settlement of disputes (1991), para. 4.

32. Arts. 36 and 37 of the UN Charter.

33. Kooijmans, P.H., ‘Inter-State Dispute Settlement in the Field of Human Rights’, 3 LJIL (1990) pp. 87–98, at pp. 90 and 94 respectively.CrossRefGoogle Scholar

34. Bert Vierdag has rightly observed that the reporting system is by no means a unique feature of human rights treaties, and more importantly he refers to Simma's warning that a reporting system does not settle disputes nor does it serve as a sanction against violations: see pp. 128–129 and p. 136 of this article.

35. Bert Vierdag's article, pp. 137–140.

36. Simma, B., ‘Self-contained Regimes’, 16 NYIL (1985) p. 135.CrossRefGoogle Scholar

37. Leigh Handler's article, p. 260.

38. Ibid., fn. 117 on p. 286.

39. Ibid., fn. 90 on p. 281.

40. Ibid., p. 296.

41. Ibid.

42. Judgment of 5 July 1994 in case C-432/92 Queen v. Minister of Agriculture Fisheries and Food, OJ No. C 31/9 of 2 February 1993.

43. Case C-120/94 R. By order of 29 June 1994 the President of the ECJ declined a request from the Commission for the indication of provisional measures (not yet reported).

44. What is bound to happen is similar to the development referred to in Judge Jennings' description of special fields, but this time it will occur on the global level: ‘areas of problems which because of their international character did require solutions in international law and gradually developed and matured into an area of law’, as cited by Malanczuk in his article at fn. 24 on p. 149.

45. Bruno de Witte's article, p. 328.

46. E.g., UNCLOS Convention, Art. 311, para. 6.

47. Bruno de Witte's essay, p. 318.

48. Adherence to the identification of intangible rules will possibly still increase as a result of the establishment of a hierarchy between different categories of community acts which are envisaged to be dealt with at the 1996 Intergovernmental Conference.

49. Bruno de Witte's article, p. 326.

50. Ibid., p. 306.

51. Blum, Y., Eroding the United Nations Charter (1993).Google Scholar

52. And this in contrast to the EU: see Bruno de Witte's article, p. 312.

53. See the Liber Amicorum dedicated to Judge Robert Jennings containing a critical review of the first half century of the ICJ.

54. See inter alia, Thirlway, H., ‘The Law and Procedure of the International Court of Justice’, 60 BYIL (1989) pp. 1–157Google Scholar; (1990) pp. 1–133; (1991) pp. 1–75; (1992) pp. 1–96.

55. See further the very instructive article by Gowland-Debbas, V., ‘The Impact of Security Council Enforcement Action and Issues of State Responsibility’, 43 ICLQ (1994) pp. 54–98.CrossRefGoogle Scholar

56. Leigh Hancher's article, p. 265. See in general, inter alia, Delbrück, J., ed., The Future of International Law Enforcement. New Scenarios – New Law?, Proceedings of an International Symposium of the Kiel Institute of International Law (1993).Google Scholar

57. Bruno de Witte's article, p. 316.