Fragmentation of international law:
Difficulties arising from the diversification and expansion of international law

2006
  • Introductory Note
  • Procedural History
  • Documents
F o r t h c o m i n g
Introductory note to be published

The report and conclusions on the topic “Fragmentation of international law: difficulties arising from diversification and expansion of international law” were adopted by the International Law Commission at its fifty-eighth session, in 2006. The General Assembly took note of the conclusions of the Commission’s Study Group on the topic, together with the analytical study, at its sixty-first session, in 2006.

The Commission decided, at its fifty-fourth session, in 2002, to include the topic “Risks ensuing from fragmentation of international law” in its programme of work; it established a Study Group and subsequently decided to change the title of the topic to “Fragmentation of international law: difficulties arising from the diversification and expansion of international law”. At its fifty-eighth session, in 2006, the Commission finalized its work on the topic and took note of the set of forty-two conclusions contained in the sixth report of the Study Group, which had to be read in connection with an analytical study, finalized by the Chairman of the Study Group, on which they were based. On 4 December 2006, the General Assembly adopted resolution 61/34, in which it took note of the conclusions of the Commission’s Study Group on the topic, together with the analytical study.

The conclusions are “a concrete, practice-oriented set of brief statements that would work, on the one hand, as the summary and conclusions of the Study Group’s work and, on the other hand, as a set of practical guidelines to help thinking about and dealing with the issue of fragmentation in legal practice” (A/60/10). They are divided into six parts: (1) general; (2) the maxim lex specialis derogat legi generali; (3) special (self-contained) regimes; (4) article 31, paragraph 3, sub-paragraph c of the Vienna Convention on the Law of Treaties; (5) conflicts between successive norms; and (6) hierarchy in international law: jus cogens, obligations erga omnes, and Article 103 of the Charter of the United Nations. The analytical study report summarizes and analyzes the phenomenon of fragmentation on the basis of studies prepared by the various members of the Study Group, taking into account the comments made in the Study Group.


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At its fifty-second session, in 2000, the International Law Commission decided to include the topic “Risks ensuing from fragmentation of international law” in its programme of work, following the recommendation of the Working Group on the Long-Term Programme of Work (A/55/10). At its fifty-fifth session, in 2000, the General Assembly took note of paragraphs 726 to 733 of the report of the International Law Commission with regard to its long-term programme of work, and the syllabuses on new topics annexed to the report (resolution 55/152 of 12 December 2000). At its fifty-sixth session, in 2001, the General Assembly requested the Commission to give further consideration to the topics to be included in its long-term programme of work, having due regard to comments made by Governments in the Sixth Committee (resolution 56/82 of 12 December 2001) at its fifty-fifth session.

At its fifty-fourth session, in 2002, the Commission included this topic in its programme of work and also established an open-ended Study Group on the Fragmentation of International Law, chaired by Mr. Bruno Simma (A/57/10). The Study Group’s first report on the fragmentation of international law was considered by the Commission (A.CN.4/L.628 and Corr.1). The report discussed, inter alia, the procedural issues involved, the methodology and format of work, and suggestions as to the possible outcome of the Commission’s work. The Commission agreed on a number of recommendations and amended the title of the topic to read as “Fragmentation of international law: difficulties arising from diversification and expansion of international law”. The Commission also agreed to the preparation of the following series of studies to be undertaken: (a) the function and scope of the lex specialis rule and the question of “self-contained regimes”; (b) the interpretation of treaties in the light of “any relevant rules of international law applicable in the relations between the parties”, in the context of general developments in international law and concerns of the international community; (c) the application of successive treaties relating to the same subject matter; (d) the modification of multilateral treaties between certain of the parties only; and (e) hierarchy in international law: jus cogens, obligations erga omnes, andArticle 103 of the Charter of the United Nations, as conflict rules (A/57/10).

On 19 December 2002, the General Assembly, in resolution 57/21, took note of the Commission’s decision to include “Fragmentation of international law: difficulties arising from diversification and expansion of international law” in its programme of work.

At its fifty-fifth session, in 2003, the Commission once again established an open-ended Study Group on this topic and appointed Mr. Martii Koskenniemi as Chairman to succeed Mr. Bruno Simma who had resigned from the Commission (A/58/10). The Study Group submitted a second report to the Commission containing a summary of its discussions (A/CN.4/L.644). The Study Group held a preliminary discussion on the outline prepared by the new Chairman of the Study Group on the first subject identified for study, namely “The function and the scope of the lex specialis rule and the question of self-contained regimes”. The Study Group also established a tentative schedule of work for the preparation of the studies to be carried out during the remainder of the quinquennium (2003 to 2006) and distributed work among its members for the preparation of outlines on the four remaining studies endorsed by the Commission in 2002.

At its fifty-sixth session, in 2004, the Commission reconstituted the Study Group (A/59/10). The Study Group considered the preliminary report on the study on the “Function and scope of the lex specialis ruleand the question of ‘self-contained regimes’” and discussed the outlines prepared in respect of the other remaining studies. Based on the studies it had considered, the Study Group agreed to draw conclusions regarding the nature and consequences of the phenomenon of “fragmentation” of international law, with the intention of developing a collective document that would be submitted to the Commission in 2006 (A/CN.4/L.663.Rev.1).

At the fifty-seventh session of the Commission, in 2005, the Study Group was again reconstituted (A/60/10). The Study Group had before it the following: (a) a memorandum on regionalism in the context of the study on the “Function and scope of the lex specialis rule and the question of ‘self-contained regimes’”; (b) a study on the interpretation of treaties in the light of “any relevant rules of international law applicable in the relations between the parties” (article 31, paragraph 3 (c), of the Vienna Convention on the Law of Treaties), in the context of general developments in international law and concerns of the international community; (c) a study on the application of successive treaties relating to the same subject matter (article 30 of the Vienna Convention on the Law of Treaties); (d) a study on the modification of multilateral treaties between certain of the parties only (article 41 of the Vienna Convention on the Law of Treaties); and (e) a study on hierarchy in international law jus cogens, obligations erga omnes, Article 103 of the Charter of the United Nations, as conflict rules. The Study Group also had before it an informal paper on the “Disconnection Clause” (A/CN.4/L.676). The Study Group reaffirmed its approach to focus on the substantive aspects of fragmentation in the light of the 1969 Vienna Convention on the Law of Treaties. The Study Group also reaffirmed its intention to submit a consolidated study as well as a set of conclusions, guidelines or principles to the fifty-eighth session of the Commission in 2006.

At its fifty-eighth session, in 2006, the Commission finalized its work on fragmentation of international law and took note of the set of forty-two conclusions contained in the sixth report of the Study Group (A/CN.4/L.702 ), which had to be read in connection with the analytical study, finalized by the Chairman of the Study Group, on which they were based (A/CN.4/L.682 and Corr.1 ). The analytical study summarized and analyzed the phenomenon of fragmentation on the basis of studies prepared by the various members of the Study Group and took into account the comments made in the Study Group. The Commission, after taking note of the conclusions of the Study Group, commended them to the attention of the General Assembly (A/61/10 ).

            On 4 December 2006, the General Assembly adopted resolution 61/34, in which it took note of the conclusions of the Commission’s Study Group on the topic “Fragmentation of international law: difficulties arising from diversification and expansion of international law,” together with the analytical study on which they were based.

Selected preparatory documents
(in chronological order)

Report of the International Law Commission on the work of its fifty-second session, 1 May to 8 June and 10 July to 18 August 2000 (A/55/10, reproduced in Yearbook of the International Law Commission 2000, vol. II, Part II, Chapter II).

Sixth Committee of the General Assembly, Summary records of meeting Nos. 21 to 24 of the fifty-fifth regular session, held from 1 to 3 November 2000, respectively (A/C.6/55/SR.21, A/C.6/55/SR.22, A/C.6/55/SR.23, A/C.6/55/SR.24)

General Assembly resolution 55/152 of 12 December 2000 (Report of the International Law Commission on the work of its fifty-second session)

Report of the International Law Commission on the work of its fifty-third session, 23 April to 1 June and 2 July to 10 August 2001 (A/56/10)

General Assembly resolution 56/82 of 12 December 2001 (Report of the International Law Commission on the work of its fifty-third session)

First report of the Study Group on Fragmentation of International Law, 1 August 2002 (A/CN.4/L.628)

International Law Commission, Summary records of meeting No. 2717, held on 8 May 2002 (A/CN.4/SR.2717, reproduced in Yearbook of the International Law Commission 2002, vol. I)

Report of the International Law Commission on the work of its fifty-fourth session, 29 April to 7 June and 22 July to 16 August 2002 (A/57/10)

International Law Commission, Summary records of meeting Nos. 2741 to 2742, held on 6 and 7 August 2002 (A/CN.4/SR.2741, A/CN.4/SR.2742, reproduced in Yearbook of the International Law Commission 2002, vol. I)

Sixth Committee of the General Assembly, Summary records of meeting Nos. 20 to 27 of the fifty-seventh regular session, held on 28 October and from 30 October to 6 November 2002, respectively (A/C.6/57/SR.20, A/C.6/57/SR.21, A/C.6/57/SR.22, A/C.6/57/SR.23, A/C.6/57/SR.24, A/C.6/57/SR.25, A/C.6/57/SR.26, A/C.6/57/SR.27)

General Assembly resolution 57/21 of 19 November 2002 (Report of the International Law Commission on the work of its fifty-fourth session)

Report of the International Law Commission on the work of its fifty-fourth session (2002): Topical summary of the discussion held in the Sixth Committee of the General Assembly during its fifty-seventh session, prepared by the Secretariat, 14 January 2003 (A/CN.4/529)

Report of the International Law Commission on the work of its fifty-fifth session, 5 May to 6 June and 7 July to 8 August 2003) (A/58/10)

International Law Commission, Summary records of meeting Nos. 2758 and 2779, held on 16 May and on 23 July 2003 (A/CN.4/SR.2758, A/CN.4/SR.2779, reproduced in Yearbook of the International Law Commission 2003, vol. I)

Second report of the Study Group on Fragmentation of International Law: Difficulties arising from the diversification and expansion of international law, 18 July 2003 (A/CN.4/L.644, reproduced in Yearbook of the International Law Commission, 2003)

Sixth Committee of the General Assembly, Summary records of meeting Nos. 14 and 19 to 21 of the fifty-eighth regular session, held on 27 and 31 October and on 3 and 4 November 2003, respectively (A/C.6/58/SR.14, A/C.6/58/SR.19, A/C.6/58/SR.20, A/C.6/58/SR.21)

Report of the International Law Commission on the work of its fifty-fifth session (2003): Topical summary of the discussion held in the Sixth Committee of the General Assembly during its fifty-eighth session, prepared by the Secretariat, 21 January 2004 (A/CN.4/537)

Report of the International Law Commission on the work of its fifty-sixth session, 3 May to 4 June and 5 July to 6 August 2004 (A/59/10)

International Law Commission, Summary records of meeting No. 2828, held on 4 August 2004 (A/CN.4/SR.2828, reproduced in Yearbook of the International Law Commission 2003, vol. I)

Third report of the Study Group on Fragmentation of International Law: Difficulties arising from the diversification and expansion of international law, 28 July 2004 (A/CN.4/L.663/Rev.1, reproduced in Yearbook of the International Law Commission, 2004)

Sixth Committee of the General Assembly, Summary records of meeting Nos. 23 to 25 of the fifty-ninth regular session, held on 8 and 9 November 2004, respectively (A/C.6/59/SR.23, A/C.6/59/SR.24, A/C.6/59/SR.25)

Report of the International Law Commission on the work of its fifty-seventh session, 2 May to 3 June and 11 July to 5 August 2005 (A/60/10)

Fourth report of the Study Group on Fragmentation of International Law: Difficulties arising from the diversification and expansion of international law, 29 July 2005 (A/CN.4/L.676, reproduced in Yearbook of the International Law Commission, 2005)

Sixth Committee of the General Assembly, Summary records of meeting Nos. 17 to 20 of the sixtieth regular session, held from 31 October to 3 November 2005, respectively (A/C.6/60/SR.17, A/C.6/60/SR.18, A/C.6/60/SR.19, A/C.6/60/SR.20)

Report of the International Law Commission on the work of its fifty-sixth session (2004): Topical summary of the discussion held in the Sixth Committee of the General Assembly during its fifty-ninth session, prepared by the Secretariat, 13 January 2006 (A/CN.4/560)

Report of the International Law Commission on the work of its fifty-eighth session, 1 May to 9 June and 3 July to 11 August 2006 (A/61/10)

International Law Commission, Summary records of meeting Nos. 2859 to 2860 and 2864-2865, held on 28 and 29 May, and on 3 and 4 August 2005 (A/CN.4/SR.2859, A/CN.4/SR.2860, A/CN.4/SR.2864, A/CN.4/SR.2865)

International Law Commission, Summary records of meeting Nos. 2901-2902 and 2911-2912, held on 27 and 28 July and on 9 and 10 August 2006 (A/CN.4/SR.2901, A/CN.4/SR.2902, A/CN.4/SR.2911, A/CN.4/SR.2912)

Fifth report of the Study Group on Fragmentation of International Law: Difficulties arising from the diversification and expansion of international law, 13 April, 2 May, and 11 August 2006 (A/CN.4/L.682, Add.1 and Corr.1)

Sixth report of the Study Group on Fragmentation of International Law: Difficulties arising from the diversification and expansion of international law, 18 July 2006 (A/CN.4/L.702)

Sixth Committee of the General Assembly, Summary records of meetings Nos. 10, 18 and 19 of the sixty-first regular session, held on 25 October and on 1 and 3 November 2006, respectively (A/C.6/61/SR.10, A/C.6/61/SR.18, A/C.6/61/SR.19)

General Assembly resolution 61/34 of 4 December 2006 (Report of the International Law Commission covering the work of its fifty-eighth session)