The Principle of Systemic Integration: Towards a Coherent International Legal Order

The Principle of Systemic Integration: Towards a Coherent International Legal Order

by Gabriel Orellana Zabalza

Paperback

$59.95

Product Details

ISBN-13: 9783643902672
Publisher: Lit Verlag
Publication date: 12/19/2012
Series: Cologne Studies in International and European Law / Kolner Schriften zum internationalen und europaischen Recht. Series , #24
Pages: 388
Product dimensions: 5.75(w) x 8.00(h) x (d)

Table of Contents

Acknowledgments xi

Abbreviations xiii

Bibliography xix

Table of Cases xlv

Table of Treaties and Official Documents lxi

I Introduction 1

II The International Legal System and the Fragmentation of International Law 11

A The Relative 'Unity' of International Law as a Legal System 12

1 International law as a legal system 13

2 International law as a 'unified' legal system 18

3 International law as a fragmented legal system 20

a Substantive fragmentation of international law 22

1 Fragmentation in the 'trade and…' debate 22

2 Fragmentation in the 'investment and…' debate 24

3 Fragmentation in international humanitarian and international human rights law 26

b Institutional Fragmentation of International Law 27

1 The CME/Lauder cases 28

2 The Swordfish Stocks dispute 29

3 Kadi and Al Barakaat v. Council and Commission 30

4 Different approaches concerning the fragmentation of international law 33

a Fragmentation as a positive development in international law 34

b Fragmentation as a negative consequence of the development of international law 36

B The Proliferation of International Tribunals: Implications on the Fragmentation Debate 39

1 General considerations on the proliferation of international courts and tribunals 40

2 Risks ensuing from conflicting decisions between competing courts 44

a Attribution in matters of State responsibility 45

b Reservations in declarations of acceptance of jurisdiction 48

c The creation of a 'factual hierarchy of regimes' 51

3 Risks ensuing from overlapping jurisdiction between competing courts 52

a The Southern Bluefin Tuna dispute 53

b The MOX Plant dispute 59

c The Swordfish Stocks dispute 63

C Appraisal 64

III Special Regimes Under International Law 67

A 'self-Contained' Regimes and International Law 69

1 ILC's early approach to 'self-contained' regimes 70

2 The fiction of 'self-contained' regimes in international law 76

B The Formation and Operation of Special Regimes 80

1 Establishment of special regimes 80

a General limitations to the establishment of special regimes 81

1 Jus cogens or peremptory norms of international law 81

2 Article 103 of the UN Charter 85

3 Obligations erga omnes 88

b Special regimes and third states 93

c Appraisal 102

2 The relationship between special regimes and international law 103

a International Human Rights Law 104

b International Trade Law 110

c European Law 115

1 Applicability of the general rules on State responsibility to EU law violations 116

2 Amendment of EU Treaties 118

3 Withdrawal from the EU 120

a Former EU law and the right of withdrawal 120

b Article 50 of the Treaty of Lisbon 122

d Appraisal 124

3 'Failure' of special regimes: A fall-back to 'general international law' 127

C The Supporting Role of 'General International Law' in Special Regimes 133

1 Does 'general international law' really exist? The traditional approach 135

2 The creation of 'general international law' through conventional law 138

D Appraisal 142

IV Treaty Interpretation in International Law 145

A Establishing the Basis: The ILC Draft Articles on the Law of Treaties 146

1 The role of the ILC in creating international law 147

2 The codification of the law on treaty interpretation: A historical perspective 150

B General Rules on Treaty Interpretation? 156

1 Different methods of treaty interpretation 158

a The textual approach 158

b The intentions or subjective approach 159

c The teleological approach 162

2 Method of interpretation adopted in the VCLT 164

C The Rules of Treaty Interpretation as Customary International Law 174

1 History of the recognition of the customary character of the general rules on treaty interpretation by the ICJ 176

a The first period (1970-1980) 176

b The second period (1980-1990) 178

c The third period (1991-1992) 180

d The fourth period (1993 -) 183

2 Recognition of the Articles' customary nature by other international courts and tribunals 184

a International Human Rights Law 185

b International Trade Law 192

c International Criminal Law 198

d Arbitral Tribunals 203

D Appraisal 208

V The Origins of Article 31(3)(C) of the VCLT 211

A The Rule of Intertemporal Law 212

1 Definition of the rule of intertemporal law 213

2 The customary character of the rule of intertemporal law 214

3 Limitations in the application of the rule of intertemporal law 218

B The Application of the Rule of Intertemporal Law to Treaty Interpretation 222

1 Drafting history of article 31(3)(c) of the VCLT 224

2 Some problems concerning the application of intertemporal law in the context of Article 31(3)(c) of the VCLT 229

C Appraisal 232

VI Article 31(3)(C) of the VCLT and the Principle of Systemic Integration 235

A Article 31(3)(C) of the VCLT as a Representation of the Principle of Systemic Integration 237

1 Norm harmonization in international law 238

2 The principle of systemic integration 241

B Expression of the Principle of Systemic Integration in Judicial Practice 243

1 US-Iran Claims Tribunal 244

2 European Court of Human Rights 247

3 NAFTA Arbitration 250

4 World Trade Organization - Dispute Settlement System 254

5 International Court of Justice 262

C Report on Fragmentation of International Law - A Reassessment of Article 31 (3)(C) of the VCLT 265

D Content and Scope of Article 31 (3)(C) of The VCLT 269

1 "Any relevant rules of international law" 271

a "Relevant" rules of international law 271

b Relevant "rules" of international law 275

2 The extent of "relevant rules of international law" 277

a Customary international law and general principles of law 280

b Conventional international law 285

3 "Applicable in the relations between the parties" 288

a All parties to the treaty being interpreted must be parties to any other treaty being used 291

b All parties to the dispute on interpretation must be parties to any other treaty being used 295

c A rule from any other treaty that is invoked must be shown to be a customary rule of international law 298

d A rule from any other treaty that is invoked must have been accepted or tolerated by all parties to the treaty under interpretation (or all parties to the dispute over interpretation) 299

E Appraisal 302

VII The Principle of Systemic Integration and Coherence in the International Legal Order - Concluding Remarks 309

A Unity and Fragmentation: General Problems 311

B Treaty Interpretation and the Principle of Systemic Integration 312

1 'General international law' and the rules on treaty interpretation 313

2 The principle of systemic integration: towards coherence in the international legal system? 315

C The Principle of Systemic Integration and International Courts and Tribunals 318

D Coherence in International Law Through the Application of the Principle of Systemic Integration 321

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