Summaries of the Work of the International Law Commission
Fragmentation of international law: difficulties arising from the diversification and expansion of international law1
See also: Analytical Guide | Texts and Instruments
At its fifty-second session, in 2000, the Commission decided to include the topic “Risks ensuing from fragmentation of international law” in its long-term programme of work.1 The Commission noted that the method and outcome of work on the topic did not fall strictly within the normal form of codification, but was within its competence and in accordance with its Statute.2 The General Assembly, in resolution 55/152 of 12 December 2000, took note of the Commission’s report concerning its long-term programme of work. In resolution 56/82 of 12 December 2001, the Assembly requested the Commission to further consider the topic, having due regard to comments made by Governments.
At its fifty-fourth session, in 2002, the Commission decided to include the topic in its programme of work, and changed the title to “Fragmentation of international law: difficulties arising from the diversification and expansion of international law”.3 The Commission proceeded with its work on the topic from its fifty-fourth session, in 2002, to its fifty-eighth session, in 2006. The Commission established a Study Group at its fifty-fourth session, in 2002, which was reconstituted at each session and chaired successively, by Bruno Simma, at its fifty-fourth session, in 2002, and by Martti Koskenniemi, at its fifty-fifth to fifty-eighth sessions, from 2003 to 2006.4 At each session, the Study Group submitted reports for consideration by the Commission.5
At its fifty-fourth session, in 2002, the Study Group recommended the preparation of the following series of studies on specific aspects of the topic to assist international judges and practitioners in coping with the consequences of the diversification of international law: (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” (article 31 (3) (c) of the Vienna Convention on the Law of Treaties (see volume II, annex V, section 6), 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 (article 30 of the Vienna Convention on the Law of Treaties); (d) the modification of multilateral treaties between certain of the parties only (article 41 of the Vienna Convention on the Law of Treaties); and (e) hierarchy in international law: jus cogens, obligations erga omnes, Article 103 of the Charter of the United Nations, as conflict rules.6 The Study Group noted that the choice of subjects for study was guided by the Commission’s previous work relating to the law of treaties and the responsibility of States for internationally wrongful acts and that the Commission’s work on the topic would build upon and further develop those earlier texts.7
At its fifty-fifth session, in 2003, the Study Group considered the preliminary conceptual questions addressed within the outline relating to the function and the scope of the lex specialis rule, prepared by the Study Group’s Chair. The questions focused on the nature of the lex specialis rule, its acceptance and rationale, the relational distinction between the “general” and the “special” rule and the application of the lex specialis rule in regard to the “same subject matter”.8
During its fifty-sixth session, in 2004, and fifty-seventh session, in 2005, the Study Group considered a number of outlines and studies on the different topics selected by the Study Group. The Study Group reaffirmed its approach to focus on the substantive aspects of fragmentation in the light of the Vienna Convention on the Law of Treaties while leaving aside institutional considerations pertaining to fragmentation. It reiterated its intention to attain an outcome that would be concrete and of practical value especially for legal experts in foreign offices and international organizations.9
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 report of the Study Group,10 which had to be read in connection with the analytical study, finalized by the Chair of the Study Group, on which they were based.11 That study summarized and analysed the phenomenon of fragmentation on the basis of the studies prepared by the various members of the Study Group and taking 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.12
In resolution 61/34 of 4 December 2006, the General Assembly 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.
1 See Yearbook … 2000, vol. II (Part Two), para. 729.
3 See Yearbook … 2002, vol. II (Part Two), paras. 492–494.
4 See ibid., para. 493; Yearbook … 2003, vol. II (Part Two), para. 412; Yearbook … 2004, vol. II (Part Two), para. 298; Yearbook … 2005, vol. II (Part Two), para. 442; and Yearbook … 2006, vol. II (Part Two), para. 237.
5 The successive reports of the Study Group have been reproduced each year in the annual reports of the International Law Commission. See Yearbook … 2002, vol. II (Part Two), paras. 495–513; Yearbook … 2003, vol. II (Part Two), paras. 415–435; Yearbook … 2004, vol. II (Part Two), paras. 300–358; Yearbook … 2005, vol. II (Part Two), paras. 445–493; Yearbook … 2006, vol. II (Part Two), paras. 241–251.
6 See Yearbook … 2002, vol. II (Part Two), para. 512.
8 See Yearbook … 2003, vol. II (Part Two), document A/58/10, para. 430.
9 See Yearbook … 2005, vol. II (Part Two), paras. 447–448.
10 See Yearbook … 2006, vol. II (Part Two), para. 251.
11 Document A/CN.4/L.682 and Corr.1 and Add.1.
12 See Yearbook … 2006, vol. II (Part Two), para. 239.