Fragmentation

by

Margaret A. Young

• LAST REVIEWED: 12 May 2017
• LAST MODIFIED: 30 July 2014
• DOI: 10.1093/obo/9780199796953-0113

Introduction

The fragmentation of public international law is a long-observed phenomenon that demonstrates uneven normative and institutional development and evolution in inter-state relations. Separate legal norms and institutions have developed largely independently from one another, often instigated by non-identical groupings of states and in response to specific functional issues. The Proliferation of Courts and Tribunals has impacted upon long-standing generalist bodies such as the International Court of Justice (ICJ) and increased the potential for fragmentation and diversification of the law. In response, the United Nations International Law Commission (ILC), in a seminal study led by Martti Koskenniemi, advocates a tool-box of “Professional Techniques” (see section Professional Techniques Responding to Fragmentation) for international lawyers. These techniques seek first and foremost to ascertain the common intention of states parties to the relevant regimes in resolving normative conflicts, and include, in certain situations: the priority of particular or special norms (lex specialis) over general norms; the priority of a subsequent rule (lex posterior) replacing an earlier conflicting rule; the priority of particular “Relations of Importance” (see section Relations of Importance: Jus Cogens, Obligations Erga Omnes and Art 103 UN Charter), including jus cogens obligations; and the principle of “systemic integration” in treaty interpretation. There is a broader and growing literature looking further than doctrinal solutions to the fragmentation of public international law. Scholarship on Regimes and Regime Interaction focus on disparate sets of norms, decision-making procedures and organizations that have been developed to address functional issue-areas such as trade facilitation and human rights protection, and seek to understand how such regimes take one another into account during conflict resolution and in more general circumstances of lawmaking and implementation. Such regimes are sometimes disassociated from traditional public international law and involve private ordering operating transnationally as well as soft-law and informal rules. Drawing attention to conflicting and overlapping norms from both public and private legal realms, scholars writing about Pluralism draw on sociological insights about the domination of particular modes of behavior, assumptions and biases within regimes, and suggest that their conflicting rationalities can never cohere. By contrast, the general theme of Constitutionalism in public international law seeks to identify unifying principles and instruments––such as the United Nations Charter––in the world order. There are a wealth of empirical or analytical case studies from diverse international and transnational areas which often demonstrate that both perspectives––the disorder and flexibility of pluralism and the coherence and unity of constitutionalism––affect situations of fragmentation and, by extension, the perceived nature of international law as a system.

General Overviews

The topic of “fragmentation” has been the subject of much scholarly attention over the last decade, although the phenomenon has long been observed. Jenks 1953 recognizes that although the potential for conflicts between treaties is unavoidable and inherent to the international legal system, various solutions can be found in procedures and principles. In its seminal study on the “Fragmentation of International Law: Difficulties Arising From the Diversification and Expansion of International Law,” a Study Group of the International Law Commission (ILC), chaired by Martti Koskenniemi, reviews the available professional techniques for international lawyers confronting situations in which multiple international norms co-exist in relationships of interpretation or conflict. The ILC Analytical Study 2006 is a comprehensive analysis of conflicts between special law and general law (lex specialis derogare lege generali), conflicts between successive norms, relations of importance (such as jus cogens, obligations erga omnes and “conflict clauses” in treaties) and the harmonizing potential of treaty interpretation. It also notes the growth of “special regimes,” a term often used to describe a group of rules and principles concerned with a particular subject matter, and usually aided by specific administering institutions, diplomatic expertise and academic specialization. The ILC Conclusions 2006 are a succinct list of forty-two conclusions that have been collectively adopted by the ILC and taken note of by the United Nations General Assembly. The modern proliferation of international courts and tribunals has been a constant theme in the fragmentation literature, especially with respect to its possible threats to the coherence of international law, as discussed, for example, in Charney 1998. A critique informed by sociological understandings about a clash of rationalities underlying a conflict between regimes is provided in Fischer-Lescano and Teubner 2004, while Koskenniemi 2007 reviews the tensions between constitutionalism and pluralism. A body of work has moved beyond the traditional focus on adjudication and treaty interpretation in the fragmentation literature. The contributing authors (including Ralf Michaels and Joost Pauwelyn) to a study of “multi-sourced equivalent norms” consider the increase in situations of normative equivalence (rather than conflicts) between rules in different fields of international law in Broude and Shany 2011. The contributing authors (including James Crawford, Martti Koskenniemi and Gunter Teubner) to a study of diversity and concurrent activity between regimes consider relevant institutional, constitutional, sociological and doctrinal issues in Young 2012.

• Broude, Tomer, and Yuval Shany, eds. Multi-Sourced Equivalent Norms in International Law. Oxford: Hart, 2011.

  Save Citation »Export Citation »E-mail Citation »

  Considers “normative parallelism”––where similar or equivalent norms are developed within disparate international regimes. Spans useful case-studies including indigenous rights protections (Claire Charters), access to environmental information (Nikolaos Lavranos) and investment protection (Martins Paparinskis), as well as general analysis (Ralf Michaels and Joost Pauwelyn, Robert Howse).

  Find this resource:

• Charney, Jonathan. “Is International Law Threatened by Multiple International Tribunals?” Recueil des cours 271 (1998): 101–382.

  Save Citation »Export Citation »E-mail Citation »

  Collection of Charney’s timely Hague lectures that considered whether the coherence of international law was threatened by the increasing number of dispute settlement tribunals. Concludes his masterful study by observing that notwithstanding differences, the tribunals operate within the same fundamentals.

  Find this resource:

• Fischer-Lescano, Andreas, and Gunther Teubner. “Regime-Collisions: The Vain Search for Legal Unity in the Fragmentation of Global Law.” Michigan Journal of International Law 25.4 (2004): 999–1046.

  Save Citation »Export Citation »E-mail Citation »

  Responds to the preoccupation of coherence in the public international law literature by arguing that the fragmentation of international law reflects more than political pluralism; it reflects the collision of fundamentally contradictory rationalities. International law cannot be unified or hierarchized. See, in German language, Andreas Fischer-Lescano and Gunther Teubner, Regime-Kollisionen: Zur Fragmentierung des globalen Rechts (Frankfurt: Surhkamp, 2006).

  Find this resource:

• ILC Analytical Study 2006, ILC Study Group on the Fragmentation of International Law. Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law; Report of the Study Group of the International Law Commission, Finalized by Martti Koskenniemi. UN Doc A/CN.4/L.682 and Add.1 and Corr. 1. New York: International Law Commission, 2006.

  Save Citation »Export Citation »E-mail Citation »

  The Study Group of the International Law Commission resolved that it would produce a “relatively large analytical study” by the chairman (Martti Koskenniemi), as well as “a condensed set of conclusions, guidelines or principles emerging from the studies and discussions in the Study Group.” This is the former document, which includes a comprehensive study of case-law and professional practice.

  Find this resource:

• ILC Conclusions 2006. ILC, Report of the Study Group, Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law: Conclusions (A/CN.4/L.702) (18 July 2006).

  Save Citation »Export Citation »E-mail Citation »

  The Study Group of the International Law Commission resolved that it would produce a “relatively large analytical study” by the chairman (Martti Koskenniemi), as well as “a condensed set of conclusions, guidelines or principles emerging from the studies and discussions in the Study Group.” This is the latter document. Its forty-two recommendations were subsequently taken note of by the United Nations General Assembly.

  Find this resource:

• Jenks, C. Wilfred. “Conflict of Law-Making Treaties.” British Year Book of International Law 30 (1953): 401.

  Save Citation »Export Citation »E-mail Citation »

  Inspired by a distinguished professional practice (including as Director General of the International Labour Organisation) as well as keen academic observation, Jenks cites historic discussions of treaty-conflicts (including Grotius, Pufendorf and Vattel) and provides a modern perspective. Reviews diplomatic practice and relevant case-law and procedures for resolving conflicts.

  Find this resource:

• Koskenniemi, Martti. “The Fate of Public International Law: Between Technique and Politics.” Modern Law Review 70.1 (2007): 1–30.

  DOI: 10.1111/j.1468-2230.2006.00624.xSave Citation »Export Citation »E-mail Citation »

  Provides a broad overview of the fragmentation of international law and argues that the principal academic responses to this phenomenon are constitutionalism and pluralism. The placing of the phenomenon of fragmentation within its historical and sociological context makes this a particular useful general overview of the topic.

  Find this resource:

• Young, Margaret, ed. Regime Interaction in International Law: Facing Fragmentation. Cambridge, UK: Cambridge University Press, 2012.

  Save Citation »Export Citation »E-mail Citation »

  This collection utilizes the concept of “regimes” from international law and international relations literature to describe functionally specialized groups of treaties and institutions such as human rights or trade law. Responding to existing approaches, it contains a variety of critical, sociological and doctrinal perspectives on fragmentation and regime interaction. Contributors include James Crawford, Martti Koskenniemi and Gunther Teubner.

  Find this resource:

Introductory Texts

The most important introductory text to the fragmentation phenomenon and the common legal responses is the work of the International Law Commission (ILC) Study Group, which considered the topic in the study “Fragmentation of International Law: Difficulties Arising From the Diversification and Expansion of International Law” over a six-year period. The ILC Analytical Study 2006, chaired by Martti Koskenniemi, is a comprehensive review of relevant practice and prescriptions. The preparatory studies for the ILC were compiled in Hafner 2000, in an account focusing on the dangers for international law of fragmentation that accompanied contemporaneous investigations into the proliferation of courts and tribunals such as Charney 1998. A discussion of the “post-modern anxieties” reflected in this literature is contained in Koskenniemi and Leino 2002. An essential guide and critique to the body of literature as a whole is Koskenniemi 2007 (whose author identifies the tension between constitutionalism and pluralism). An informative account drawing on political economy is provided in Benvenisti and Downs 2007. Additional critical and philosophical accounts, which include introductory discussions of the history of the notion of fragmentation in international law, are contained in Khrebtukova 2008 and Martineau 2009.

• Benvenisti, Eyal, and George W. Downs. “The Empire’s New Clothes: Political Economy and the Fragmentation of International Law.” Stanford Law Review 60.2 (2007): 595–632.

  Save Citation »Export Citation »E-mail Citation »

  Argues that the fragmentation of international law is more problematic than is commonly believed because it impedes the development of a more democratic and egalitarian system of international regulation. Identifies and analyzes aspects of fragmentation that permit powerful states to retain their dominance.

  Find this resource:

• Charney, Jonathan. “Is International Law Threatened by Multiple International Tribunals?” Recueil des cours 271 (1998): 101–382.

  Save Citation »Export Citation »E-mail Citation »

  Charney’s Hague lectures examine how multiple forums have addressed seven areas of international law: treaty law, other sources of international law, the law of state responsibility, compensation standards, exhaustion of domestic remedies requirements, the international law relating to nationality of persons and international maritime boundary law.

  Find this resource:

• Hafner, Gerhard. “Risks Ensuing from Fragmentation of International Law.” Official Records of the General Assembly, Fifty-fifth Session, Supplement No. 10, UN Doc. A/55/10 (2000), at 321–339.

  Save Citation »Export Citation »E-mail Citation »

  This work triggered the broader ILC study chaired by Hafner’s successor at the ILC, Martti Koskenniemi. See also Gerhard Hafner, “Pros and Cons Ensuing from Fragmentation of International Law,” Michigan Journal of International Law 25 (2004): 849–864, which describes the causes of fragmentation and offers an analysis of positive and negative effects. An excellent article for readers with minimal background knowledge.

  Find this resource:

• ILC Analytical Study 2006, ILC Study Group on the Fragmentation of International Law. Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law; Report of the Study Group of the International Law Commission, Finalized by Martti Koskenniemi. UN Doc A/CN.4/L.682 and Add. 1 and Corr. 1. New York: International Law Commission, 2006.

  Save Citation »Export Citation »E-mail Citation »

  This analytical study produced by the Study Group of the International Law Commission includes a comprehensive study of case-law and previous professional practice relating to lex specialis, lex posterior and other modes for resolving conflicts between norms, while also advocating a contextual and nonmechanical approach to resolving normative conflict.

  Find this resource:

• Khrebtukova, Alexandra. “A Call to Freedom: Towards a Philosophy of International Law in an Era of Fragmentation” Journal of International Law and International Relations 4 (2008) 51–103.

  Save Citation »Export Citation »E-mail Citation »

  Draws on philosophy and sociology to critique the notion that fragmentation can be resolved through regimes taking account of one another. The author had experience interning at the International Law Commission during its seminal study.

  Find this resource:

• Koskenniemi, Martti, and Päivi Leino. “Fragmentation of International Law? Postmodern Anxieties.” Leiden Journal of International Law 15.3 (2002): 553–579.

  DOI: 10.1017/S0922156502000262Save Citation »Export Citation »E-mail Citation »

  Identifies and analyzes inconsistencies in the jurisprudence of the International Court of Justice, and judicial bodies in the fields of international criminal, human rights and trade law. Provides an overview of the debate on the proliferation of international judicial bodies. Argues that this debate is ultimately a manifestation of political pluralism.

  Find this resource:

• Koskenniemi, Martti. “The Fate of Public International Law: Between Technique and Politics.” Modern Law Review 70.1 (2007): 1–30.

  DOI: 10.1111/j.1468-2230.2006.00624.xSave Citation »Export Citation »E-mail Citation »

  Situates the phenomenon of the fragmentation of international law within two principal academic responses: constitutionalism and pluralism.

  Find this resource:

• Martineau, Anne-Charlotte. “The Rhetoric of Fragmentation: Fear and Faith in International Law.” Leiden Journal of International Law 22.1 (2009): 1–28.

  DOI: 10.1017/S092215650800561XSave Citation »Export Citation »E-mail Citation »

  A brief historical analysis of the notion of fragmentation in international law, spanning from the 1870s to the present. Argues that fragmentation is a powerful rhetoric invoked by international lawyers, primarily during periods of anxiety, in order to garner support for projects of law reform.

  Find this resource:

Journal Symposia and Edited Collections

There have been several dedicated journal symposia, conference proceedings and edited collections devoted to the topic of the fragmentation of public international law. The major English-language sources are included here, although there are a number of French and German events and collections. The major symposia by leading international journals include the European Journal of International Law 1997, New York University Journal of International Law and Politics 1999 and the Michigan Journal of International Law 2004. These have been highly influential in shaping the subsequent debate. Major edited collections which extend the discussion to novel forms of normative pluralism include Broude and Shany 2008, Broude and Shany 2011, Young 2012 and Klabbers and Piiparinen 2013, revealing a broader interest in the institutional, normative and sociological dimensions of fragmentation. Conference proceedings have been numerous (leading to the edited collections here and other works) and include the Canadian Council on International Law 2006.

• Broude, Tomer, and Yuval Shany, eds. The Shifting Allocation of Authority in International Law. Oxford: Hart Publishing, 2008.

  Save Citation »Export Citation »E-mail Citation »

  A valuable volume that considers how, in the absence of central authority, the power and legitimacy to make and interpret international law should be allocated among states, international organizations and tribunals. Neat themes of sovereignty, supremacy (in inter-judicial relations) and subsidiarity (drawing on the European Union experiences) structure the volume, which include learned contributions by Thomas Franck, W Michael Reisman and Andreas Paulus.

  Find this resource:

• Broude, Tomer, and Yuval Shany, eds. Multi-Sourced Equivalent Norms in International Law. Oxford: Hart Publishing, 2011.

  Save Citation »Export Citation »E-mail Citation »

  Considers ‘normative parallelism’ – where similar or equivalent norms are developed within disparate international regimes. Spans useful case-studies including indigenous rights protections (Claire Charters), access to environmental information (Nikolaos Lavranos) and investment protection (Martins Paparinskis), as well as general analysis (Ralf Michaels and Joost Pauwelyn, Robert Howse).

  Find this resource:

• Canadian Council on International Law. Fragmentation: Diversification and Expansion of International Law: Proceedings of the 34th Annual Conference of the Canadian Council of International Law, Ottawa, October 26–28, 2005. Edited by John McManus. Ottawa: Canadian Council on International Law, 2006.

  Save Citation »Export Citation »E-mail Citation »

  Bilingual (English and French) proceedings that are compiled in an extensive volume nearing four hundred pages and including a variety of perspectives on the theme.

  Find this resource:

• European Journal of International Law 8.3–4 (1997).

  Save Citation »Export Citation »E-mail Citation »

  Prescient symposium titled “The Changing Structure of International Law Revisited,” published in issues 3 and 4 of volume, which includes contributions by J. H. H. Weiler, Andreas L. Paulus (“The Structure of Change in International Law or Is There a Hierarchy of Norms in International Law?”), Martti Koskenniemi (“Hierarchy in International Law: A Sketch”), and Juan Antonio Carrillo Salcedo (“Reflections on the Existence of a Hierarchy of Norms in International Law.”

  Find this resource:

• Klabbers, Jan, and Touko Piiparinen, eds. Normative Pluralism and International Law: Exploring Global Governance. Cambridge, UK: Cambridge University Press, 2013.

  DOI: 10.1017/CBO9781139567121Save Citation »Export Citation »E-mail Citation »

  Provides a compilation of views on normative pluralism as it operates within and outside of formal law, including norms arising from religion, codes of honor and lex mercatoria.

  Find this resource:

• Michigan Journal of International Law 25.4 (2004).

  Save Citation »Export Citation »E-mail Citation »

  Influential symposium entitled “Diversity or Cacophony? New Sources of Norms in International Law: Symposium” which includes the work of A. Fischer-Lescano and G. Teubner, Joost Pauwelyn, Bruno Simma and Karel Wellens.

  Find this resource:

• New York University Journal of International Law and Politics 31:4 (1999): 679–993.

  Save Citation »Export Citation »E-mail Citation »

  Extensive symposium titled “The Proliferation of International Tribunals: Piecing Together the Puzzle” with a foreword by Benedict Kingsbury. Includes the views of the major international lawyers and scholars who have shaped and contributed to the debate, including Georges Abi-Saab, Jonathan Charney and Pierre-Marie Dupuy.

  Find this resource:

• Young, Margaret, ed. Regime Interaction in International Law: Facing Fragmentation. Cambridge, UK: Cambridge University Press, 2012.

  Save Citation »Export Citation »E-mail Citation »

  A timely volume that utilizes the concept of “regimes” from international law and international relations literature to describe functionally specialized groups of treaties and institutions such as human rights or trade law. Responding to existing approaches, it contains a variety of critical, sociological and doctrinal perspectives on fragmentation and regime interaction. Contributors include James Crawford, Martti Koskenniemi and Gunther Teubner.

  Find this resource:

Proliferation of Courts and Tribunals

The proliferation of new international courts and tribunals in diverse areas such as international humanitarian law (see, e.g., International Tribunal for the Former Yugoslavia, ICTY), the law of the sea (see, e.g., International Tribunal for the Law of the Sea) and trade law (Appellate Body of the World Trade Organization) has impacted upon long-standing generalist bodies such as the International Court of Justice (ICJ) and increased the potential for fragmentation within international law. Charney 1998 observes that states have created a system with multiple options for third-party dispute settlement, and poses the question of whether a hierarchy exists between the relevant bodies. He concludes there are relatively coherent approaches by the tribunals. In further doctrinal assessments, Shany 2003 suggests some reforms to avert the potential for jurisdictional conflict, while Brown 2007 observes an increasing harmonization of practice of international adjudication. Webb 2013 proposes a model for judicial integration based on judicial dialogue, a prominent role for the ICJ and a shared responsibility for integration that includes nonjudicial actors. Discussions by judges and arbitrators such as members of the bench of the ICJ and the Appellate Body of the World Trade Organization are contained in Abi-Saab 1999, Dupuy 2000, Higgins 2006, and Crawford and Nevill 2012. These provide essential practical and doctrinal observations about the dangers and benefits of having a diverse system of dispute settlement in international law.

• Abi-Saab, Georges. “Fragmentation or Unification: Some Concluding Remarks.” New York University Journal of International Law and Politics 31.4 (1999): 919–933.

  Save Citation »Export Citation »E-mail Citation »

  A concise overview of the proliferation of international courts and tribunals from a distinguished practitioner and former member of the World Trade Organization Appellate Body. Advocates for an international judicial system. Particularly useful for the concrete suggestions of how such an international judicial system can be realized within the constraints of the current international legal order.

  Find this resource:

• Brown, Chester. A Common Law of International Adjudication. New York: Oxford University Press, 2007.

  DOI: 10.1093/acprof:oso/9780199206506.001.0001Save Citation »Export Citation »E-mail Citation »

  Argues there is an emerging common law of international adjudication, evidenced by the increasing convergence of international judicial approaches to questions of procedure and remedies. Posits this phenomenon has positive implications for the international legal system because it indicates that international courts and tribunals view themselves as constituting a community.

  Find this resource:

• Charney, Jonathan. “Is International Law Threatened by Multiple International Tribunals?” Recueil des cours 271 (1998): 101–382.

  Save Citation »Export Citation »E-mail Citation »

  Collection of Charney’s Hague lectures that considered the impact that multiple tribunals could have on the international legal system. Predominantly a comparative law analysis of several major doctrines of public international law to determine their treatment by different tribunals. See also later work “The Impact on the International Legal System of the Growth of International Courts and Tribunals,” New York University Journal of International Law and Politics 31 (1999): 697.

  Find this resource:

• Crawford, James, and Penelope Nevill. “Relations between International Courts and Tribunals: The ‘Regime Problem.’” In Regime Interaction in International Law: Facing Fragmentation. Edited by Margaret A. Young, 235–260. New York: Cambridge University Press, 2012.

  Save Citation »Export Citation »E-mail Citation »

  Combining the perspective of a distinguished arbitrator and tribunal member with a practicing barrister, draws on cases from a range of international legal disciplines. Provides a non-exhaustive list of techniques used to deal with regime and rule conflict. Argues that the decisions made by international judicial bodies in these cases offer insight into the idea of international law as law.

  Find this resource:

• Dupuy, Pierre-Marie. “L’Unité de l’Ordre Juridique International.” Recueil des cours 297 (2000): 9–489.

  Save Citation »Export Citation »E-mail Citation »

  This collection of Dupuy’s general course at The Hague shows his main preoccupation to be the unity of international law. See also, in English language, Pierre-Marie Dupuy, “The Danger of Fragmentation or Unification of the International Legal System and the International Court of Justice,” New York University Journal of International Law and Politics 31 (1999): 791–807, where the distinguished arbitrator and scholar argues for the revitalization of the role of the International Court of Justice.

  Find this resource:

• Higgins, Rosalyn. “A Babel of Judicial Voices? Ruminations from the Bench.” International and Comparative Law Quarterly 55 (2006) 791.

  DOI: 10.1093/iclq/lei130Save Citation »Export Citation »E-mail Citation »

  A learned assessment from the president of the International Court of Justice of the implications of the multiplying of judicial institutions and the deepening of international law. Higgins has also commented on the relationship between the International Court of Justice and the European Court of Justice in “The ICJ, the ECJ, and the Integrity of International Law,” International and Comparative Law Quarterly (2003) 52: 1–20.

  Find this resource:

• Shany, Yuval. The Competing Jurisdictions of International Courts and Tribunals. New York: Oxford University Press, 2003.

  Save Citation »Export Citation »E-mail Citation »

  A comprehensive analysis of jurisdictional conflict in international law. Argues that current international law provides some guidance in relation to forum selection and parallel or successive proceedings, but that additional norms and structural reforms are required. In light of the limited prospects for substantial reform, concludes with modest but practical recommendations.

  Find this resource:

• Webb, Philippa. International Judicial Integration and Fragmentation. Oxford: Oxford University Press, 2013.

  Save Citation »Export Citation »E-mail Citation »

  Examines the judicial practice of international courts and tribunals as it relates to selected substantive areas of law: genocide, immunities and the use of force. The examined courts include the ICJ, ICC, ICTY and the International Criminal Tribunal for Rwanda (ICTR). The author proposes a practical model for enhancing judicial integration to avoid incoherence in the development of international law.

  Find this resource:

Professional Techniques Responding to Fragmentation

The International Law Commission (ILC) is charged with the “codification and progressive development of international law,” and as part of this mandate it convened a Study Group of commissioners to address the topic of the “Fragmentation of International Law: Difficulties Arising From the Diversification and Expansion of International Law” over a six year period. The ILC Study Group, chaired by Martti Koskenniemi, released the ILC Analytical Study 2006, which consolidated the work of the commissioners. This was followed by a set of conclusions by way of “practical guidelines to help thinking about and dealing with the issue of fragmentation in legal practice,” in the ILC Conclusions 2006. These recommendations aim to be ‘concrete’ and ‘practice-oriented’, and are broadly structured around the following four topics: (1) “conflicts between special law and general law” (see section Conflicts between Special Law and General Law (Lex Specialis Derogare Lege Generali)): this includes the rule of lex specialis derogat legi generali, which is based on the primacy of the specific over the general (usually, a more specific treaty will trump the general treaty), as well as the case of special regimes; (2) Conflicts between Successive Norms: this includes the principle of lex posterior derogat legi priori, which gives primacy to a more recent treaty over an earlier one; (3) relations of importance (see section Relations of Importance: Jus Cogens, Obligations Erga Omnes and Art 103 UN Charter): this includes jus cogens obligations, erga omnes, and special treaty clauses setting out the priority of conflicting norms, such as Article 103 of the UN Charter; (4) Treaty Interpretation and Systemic Integration and Article 31(3)(c) of the Vienna Convention on the Law of Treaties. The techniques offered within these four topics are non-exhaustive, flexible, context-dependent, and not always in harmony themselves, given the possibility, for example, that the application of a lex specialis and lex posterior principle to actual or potential conflicts of norms could lead to different results.

• ILC Analytical Study 2006. ILC Study Group on the Fragmentation of International Law. Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law; Report of the Study Group of the International Law Commission, Finalized by Martti Koskenniemi. UN Doc A/CN.4/L.682 and Add. 1 and Corr. 1. New York: International Law Commission, 2006.

  Save Citation »Export Citation »E-mail Citation »

  The professional techniques dealing with fragmentation, as summarized below, are comprehensively examined by the Study Group of the expert International Law Commission. The resulting study makes good its promise of a “tool-kit” for international lawyers.

  Find this resource:

• ILC Conclusions 2006. ILC, Report of the Study Group, Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law: Conclusions (A/CN.4/L.702) (18 July 2006).

  Save Citation »Export Citation »E-mail Citation »

  As well as receiving endorsement by the United Nations General Assembly, these forty-two recommendations also operate as a structured summary of the work of the Study Group.

  Find this resource:

Regimes and Regime Interaction

The notion of “regimes,” a central concept in understanding and analyzing the fragmentation of public international law, has been developed within International Relations Scholarship in works that have coalesced around “regime theory” as well as within the Public International Law Literature. The ILC Analytical Study 2006 called for further work to be done on “the notion and operation of ‘regimes.’” Building on Krasner 1983, and Fischer-Lescano and Teubner 2004, Young 2012 defines regimes as “sets of norms, decision-making procedures and organisations coalescing around functional issue-areas and dominated by particular modes of behaviour, assumptions and biases,” (p. 11) and notes that the interaction between regimes can lead to productive friction. Regimes develop within both public international law (most commonly through treaties and associated institutions) and private formal or informal arrangements. Participants include a range of state and non-state actors. Lang 2012 claims that biases and preferences are embedded within regimes, especially surrounding technical expertise, and this affects the interaction between regimes in unseen and important ways. Dunoff 2012 argues that studies of fragmentation too often focus only on dispute settlement; he instead considers the practices and influences of participants at other times of normative conflict. Michaels and Pauwelyn 2011 draw on public international law techniques and private international law techniques in resolving conflicts across regimes. Koskenniemi 2012, provides a matrix of the positive and negative effects of regime interaction, and argues that greater coordination between regimes risks managerialism and the co-option of the weaker regime.

• Dunoff, Jeffrey. “A New Approach to Regime Interaction.” In Regime Interaction in International Law: Facing Fragmentation. Edited by Margaret A. Young, 136–174. Cambridge, UK: Cambridge University Press, 2012.

  Save Citation »Export Citation »E-mail Citation »

  Argues that scholarship on regime interaction is skewed toward litigation, and advocates for a broader analysis encompassing the variety of other settings––operational, regulatory and conceptual––in which regimes interact. Employs Robert Cover’s concept of “nomos” to analyze the practices and influences of participants within international regimes, including non-state actors.

  Find this resource:

• Fischer-Lescano, Andreas, and Gunther Teubner. “Regime-Collisions: The Vain Search for Legal Unity in the Fragmentation of Global Law.” Michigan Journal of International Law 25.4 (2004): 999–1046.

  Save Citation »Export Citation »E-mail Citation »

  Argues that the fragmentation of international law reflects more than political pluralism; it reflects the collision of fundamentally contradictory rationalities. The biases and preferences within regimes preclude efforts at harmony or conflict resolution. See, in German language, Andreas Fischer-Lescano and Gunther Teubner, Regime-Kollisionen: Zur Fragmentierung des globalen Rechts (Frankfurt: Surhkamp, 2006).

  Find this resource:

• ILC Analytical Study 2006. ILC Study Group on the Fragmentation of International Law. Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law; Report of the Study Group of the International Law Commission, Finalized by Martti Koskenniemi. UN Doc A/CN.4/L.682 and Add.1 and Corr. 1. New York: International Law Commission, 2006.

  Save Citation »Export Citation »E-mail Citation »

  The seminal study by the Study Group of the expert International Law Commission warned against the terminology of “self-contained regimes.” It concluded its comprehensive study of case-law and previous professional practice by calling for further attention to the notion and operation of regimes.

  Find this resource:

• Koskenniemi, Martti. “Hegemonic Regimes.” In Regime Interaction in International Law: Facing Fragmentation. Edited by Margaret A. Young, 305–324. New York: Cambridge University Press, 2012.

  Save Citation »Export Citation »E-mail Citation »

  Argues that regimes have hegemonic tendencies, and regime interaction is therefore a question of which regime will succumb or be co-opted. Posits that greater coherence and coordination between regimes is not necessarily desirable. Instead, it is undesirable to the extent that it further facilitates an unjust international legal order.

  Find this resource:

• Krasner, Stephen. “Structural Causes and Regime Consequences: Regimes as Intervening Variables.” In International Regimes. Edited by Stephen Krasner, 1–21. London: Cornell University Press, 1983.

  Save Citation »Export Citation »E-mail Citation »

  An excellent introduction to the political theory of international regimes, which first aired as a special 1982 edition of the journal International Organization, edited by Krasner. Provides an overview of the key theoretical approaches to regimes and explores the factors associated with regime creation.

  Find this resource:

• Lang, Andrew. “Legal Regimes and Professional Knowledges: The Internal Politics of Regime Definition.” In Regime Interaction in International Law: Facing Fragmentation. Edited by Margaret A. Young, 113–135. Cambridge, UK: Cambridge University Press, 2012.

  Save Citation »Export Citation »E-mail Citation »

  Uses the international trade law regime, and specifically its constructed concept of a trade barrier, to identify processes by which normative biases and “principles of vision” become embedded in regimes.

  Find this resource:

• Michaels, Ralf, and Joost Pauwelyn. “Conflict of Norms or Conflict of Laws?: Different Techniques in the Fragmentation of Public International Law.” In Multi-Sourced Equivalent Norms in International Law. Edited by Tomer Broude and Yuval Shany, 19–44. Oxford, UK: Hart, 2011.

  Save Citation »Export Citation »E-mail Citation »

  A pioneering piece arguing that conflict-of-laws rules developed in private international law provide useful techniques for problems arising from the fragmentation of public international law. The international legal order is characterized as hybrid. Also published in DukeJournal of Comparative & International Law 22 (2012): 349–376.

  Find this resource:

• Young, Margaret A. “Introduction: The Productive Friction between Regimes”. In Regime Interaction in International Law: Facing Fragmentation. Edited by Margaret A. Young, 1–19. Cambridge, UK: Cambridge University Press, 2012.

  Save Citation »Export Citation »E-mail Citation »

  Provides a typology of the use of “regimes” in international relations and public international law scholarship, and provides a hybrid definition. Argues that the interaction between regimes may lead to a more responsive and effective international legal system than the sum of the constituent regimes.

  Find this resource:

Constitutionalism

A major theme in the literature on the fragmentation of public international law is constitutionalism: on the one hand, the development of isolated and conflicting norms is considered a direct result of the absence of a constitutional system; on the other, emerging constitutional practices are identified to resolve the ensuing problems. This is part of a broader question that is sometimes depicted as a tension between constitutionalism and Pluralism. The ILC Analytical Study 2006 did not take a formal position on whether there was constitution within public international law, although it found that there was an international legal system and also observed there were inherent Relations of Importance: Jus Cogens, Obligations Erga Omnes and Art 103 UN Charter such as principles of jus cogens and obligations erga omnes. Its discussion of the dominant role of the United Nations Charter did not go as far as asserting its status as an international constitution, which had been suggested in Fassbender 1998 and, to a lesser extent, De Wet 2006. Kumm 2004 uses constitutional principles to derive international law’s legitimacy. Other writers have situated this discussion within the globalizing effect of international trade. Petersmann 2002 observes constitutional features within the regime of the World Trade Organisation (WTO). Cass 2005 reviews the origins of such debates and provides a masterful critique; Picciotto 2008 similarly warns against proposals for constitutionalism that reinforce the dominance of economic liberalism. Within public international law, Klabbers, et al. 2009 provides a normative account of constitutionalism in law-making, adjudication and international institutional practice. Dunoff 2012 argues that a central aspect of constitutionalism––a “redemptive narrative”––is absent from the international community, thus leading to alternative explorations of Regimes and Regime Interaction.

• Cass, Deborah Z. The Constitutionalization of the World Trade Organization: Legitimacy, Democracy and Community in the International Trading System. Oxford: Oxford University Press, 2005.

  DOI: 10.1093/acprof:oso/9780199285846.001.0001Save Citation »Export Citation »E-mail Citation »

  Argues that the World Trade Organization is not a constitution by the standards of any conventional definition, and warns of the risks of economic goals and free trade theory taking priority over other social values.

  Find this resource:

• De Wet, Erika. “The International Constitutional Order.” International and Comparative Law Quarterly 55.1 (2006): 51–76.

  Save Citation »Export Citation »E-mail Citation »

  Presents a cogent argument for an emerging, yet still embryonic, international constitutional order. Argues that this new order is evidenced by three phenomena: the development of the international community, the emergence of an international value system, and basic mechanisms for the enforcement of this system.

  Find this resource:

• Dunoff, Jeffrey. “A New Approach to Regime Interaction.” In Regime Interaction in International Law: Facing Fragmentation. Edited by Margaret A. Young, 136–174. Cambridge, UK: Cambridge University Press, 2012.

  Save Citation »Export Citation »E-mail Citation »

  Recognizes a broader set of situations of fragmentation outside of the well-studied example of dispute settlement. See also Dunoff and Joel P. Trachtman’s “A Functional Approach to International Constitutionalization.” In Ruling the World? International Law, Global Governance, Constitutionalism. Edited by Jeffrey L. Dunoff and Joel P. Trachtman (Cambridge, UK: Cambridge University Press, 2009), pp. 3–35.

  Find this resource:

• Fassbender, Bardo. “The United Nations Charter as a Constitution of the International Community.” Columbia Journal of Transnational Law 36.3 (1998): 529–620.

  Save Citation »Export Citation »E-mail Citation »

  Provides a detailed argument to the effect that the United Nations Charter is the constitution of the international community. Identifies several features of the Charter which conform to Weber’s conception of the ideal constitution. Also provides useful discussion of how the concept of a constitution can be transposed to the international sphere.

  Find this resource:

• ILC Analytical Study 2006. ILC Study Group on the Fragmentation of International Law. Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law; Report of the Study Group of the International Law Commission, Finalized by Martti Koskenniemi. UN Doc A/CN.4/L.682 and Add.1 and Corr. 1. New York: International Law Commission, 2006.

  Save Citation »Export Citation »E-mail Citation »

  The ILC Study Group provides a detailed analysis of the hierarchical aspects of the international system, including the priority given to norms of jus cogens. Obligations erga omnes and the United Nations Charter are also examined. These aspects are often considered to be quasi-constitutional, although the Study Group makes no claims in this regard.

  Find this resource:

• Klabbers, Jan, Anne Peters, and Geir Ulfstein. The Constitutionalization of International Law. New York: Oxford University Press, 2009.

  DOI: 10.1093/acprof:oso/9780199543427.001.0001Save Citation »Export Citation »E-mail Citation »

  Departing from the premise that a process of constitutionalization is occurring, this book employs constitutionalism as an heuristic device in order to explore what a constitutional world order could and should resemble. The authors apply this approach to several pertinent areas including law-making, adjudication, and international political institutions.

  Find this resource:

• Kumm, Mattias. “The Legitimacy of International Law: A Constitutionalist Framework of Analysis.” European Journal of International Law 15 (2004): 907–931.

  DOI: 10.1093/ejil/15.5.907Save Citation »Export Citation »E-mail Citation »

  Develops a constitutionalist model for assessing the legitimacy of international law that draws on themes and commitments underlying constitutional democracy. See also his “The Cosmopolitan Turn in Constitutionalism: On the Relationship Between Constitutionalism in and Beyond the State.” In Ruling the World? International Law, Global Governance, Constitutionalism. Edited by Jeffrey L. Dunoff and Joel P. Trachtman (Cambridge, UK: Cambridge University Press, 2009), pp. 258–325.

  Find this resource:

• Petersmann, Ernst-Ulrich. “Constitutionalism and WTO Law: From a State-centred Approach towards a Human Rights Approach in International Economic Law.” In The Political Economy of International Trade Law: Essays in Honour of Robert E. Hudec. Edited by Daniel L. M. Kennedy and James D. Southwick, 32–67. Cambridge, UK: Cambridge University Press, 2002.

  DOI: 10.1017/CBO9780511494512Save Citation »Export Citation »E-mail Citation »

  Observes that the WTO’s guarantees of freedom and dispute settlement derive moral legitimacy from Kant’s constitutional theory for maximizing equal freedoms; argues that reforms based on human rights law will provide further legitimacy. See also his “Time for a United Nations ‘Global Compact’ for Integrating Human Rights in the Law of Worldwide Organizations: Lessons from European Integration.” European Journal of International Law 13 (2002): 621.

  Find this resource:

• Picciotto, Sol. “Constitutionalizing Multilevel Governance?” International Journal of Constitutional Law 6 (2008): 457–479.

  DOI: 10.1093/icon/mon017Save Citation »Export Citation »E-mail Citation »

  An enquiry into the potential role for constitutionalism in the current system of multilevel global governance. Critiques existing proposals for constitutionalism which, in the author’s view, would reinforce the dominance of economic liberalism. Advocates instead for a democratic constitutionalism which would enable the expression and fulfilment of collective preferences.

  Find this resource:

Pluralism

A range of sociological and legal works such as Fischer-Lescano and Teubner 2004 posit pluralism––the lack of any hierarchy in multiple and overlapping legal rules––as an alternative to Constitutionalism. Legal pluralism, developed in socio-legal studies such as Teubner 1997, observes the operation of multiple fields of law in nontraditional settings detached from the state, including private law, indigenous law, and transnational arrangements. Although earlier approaches were sociological in origin and aims, more recent approaches set out normative accounts of legal pluralism as a superior framework for dealing with fragmentation, given the capacity for diversity, flexibility and political contestation within pluralist approaches. Zumbansen 2010 focuses on the evolution of “social norms” and “spaces” of governance and regulation on a world scale, rejecting any conception of a hierarchy in the global legal order. Schiff Berman 2012 asserts that pluralism provides superior tools in dealing with the existence of multiple normative realms, and Krisch 2010 considers it to provide stronger transnational accountability than constitutionalist approaches. The International Law Commission Study Group did not delve deeply into issues of non-state “global law,” but observes pluralism to be a “constitutive value” of the fragmented system of public international law, recommending that its Professional Techniques Responding to Fragmentation can be used to resolve most problems (see The ILC Analytical Study 2006). In contrast, pluralist understandings of the biases and different demands of particular legal communities doubt the facility of doctrinal fixes; examples include Kennedy 2007 and Cohen 2012. There is a similar rejection of “grand theories” relating to the collision of normative orders in a broad number of works building and extending the public international law literature such as Klabbers and Piiparinen 2013.

• Cohen, Harlan Grant. “Finding International Law, Part II: Our Fragmenting Legal Community.” New York University Journal of International Law and Politics 44 (2012) 1049–1107.

  Save Citation »Export Citation »E-mail Citation »

  Argues that the fragmentation of international law demands a new conception of the sources of international law. Considers that global administrative law and human rights law have developed different conceptions of sources and legitimate law-making, so that doctrinal techniques to resolve conflicting norms are insufficient.

  Find this resource:

• Fischer-Lescano, Andreas, and Gunther Teubner. “Regime-Collisions: The Vain Search for Legal Unity in the Fragmentation of Global Law.” Michigan Journal of International Law 25.4 (2004): 999–1046.

  Save Citation »Export Citation »E-mail Citation »

  Introduces the sociological predictions of Niklas Luhmann that world society would fragment along social sectoral lines and argues that on this basis, international law will never overcome the deep incompatibility of fundamentally contradictory rationalities. See, in German language, Andreas Fischer-Lescano and Gunther Teubner, Regime-Kollisionen: Zur Fragmentierung des globalen Rechts (Frankfurt: Surhkamp, 2006).

  Find this resource:

• ILC Analytical Study 2006. ILC Study Group on the Fragmentation of International Law. Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law; Report of the Study Group of the International Law Commission, Finalized by Martti Koskenniemi. UN Doc A/CN.4/L.682 and Add.1 and Corr. 1. New York: International Law Commission, 2006.

  Save Citation »Export Citation »E-mail Citation »

  The comprehensive analysis of the ILC’s Study Group provides the basis for a professional tool-kit of techniques responding to fragmentation, and pluralism does not feature centrally in this approach.

  Find this resource:

• Kennedy, David. “One, Two, Three, Many Legal Orders: Legal Pluralism and the Cosmopolitan Dream.” New York University Review of Law and Social Change 31 (2007): 641.

  Save Citation »Export Citation »E-mail Citation »

  Part of Kennedy’s wider interest in the dominance of experts and expertise in global governance, he argues here that legal pluralism is a professional experience. An awareness of legal pluralism assists international lawyers in uncovering their blind spots and finding structural causes of injustices, rather than searching for a unifying cosmopolitan order.

  Find this resource:

• Klabbers, Jan, and Touko Piiparinen, eds. Normative Pluralism and International Law: Exploring Global Governance. Cambridge, UK: Cambridge University Press, 2013.

  DOI: 10.1017/CBO9781139567121Save Citation »Export Citation »E-mail Citation »

  Extends the discussion of pluralism as it operates within international law to a broader pluralism that includes law and different normative orders, such as religion, chivalry, and lex mercatoria. Contributing chapters aim at a preliminary identification and investigation rather than a presentation of possible solutions.

  Find this resource:

• Krisch, Nico. Beyond Constitutionalism: The Pluralist Structure of Postnational Law. Oxford: Oxford University Press, 2010.

  DOI: 10.1093/acprof:oso/9780199228317.001.0001Save Citation »Export Citation »E-mail Citation »

  Building on earlier interest in global administrative law, argues that pluralism is normatively preferable to constitutionalist approaches that aim for unity and coherence. See his earlier “The Pluralism of Global Administrative Law,” European Journal of International Law 17 (2006): 247–278.

  Find this resource:

• Schiff Berman, Paul. Global Legal Pluralism: A Jurisprudence of Law Beyond Borders. Cambridge, UK: Cambridge University Press, 2012.

  Save Citation »Export Citation »E-mail Citation »

  Argues that legal pluralism provides a superior framework for the reconciliation of conflicts between normative orders. See also among earlier works his “The New Legal Pluralism: Defining the Field,” Annual Review of Law and Social Science 5 (2009): 225–242

  Find this resource:

• Teubner, Gunther. “Global Bukowina: Legal Pluralism in the World Society.” In Global Law Without a State. Edited by Gunther Teubner, 3–28. Aldershot, UK: Dartmouth, 1997.

  Save Citation »Export Citation »E-mail Citation »

  Supports the early predictions of an Austrian academic based in Bukowina, that civil society would globalize its legal orders, as opposed to a Kantian cosmopolitan order derived from the nation-state. See also, within a large corpus, his “Two Kinds of Legal Pluralism: Collision of Transnational Regimes in the Double Fragmentation of World Society” (with Peter Korth).

  Find this resource:

• Zumbansen, Peer. “Transnational Legal Pluralism.” Transnational Legal Theory 10.2 (2010) 141–189.

  Save Citation »Export Citation »E-mail Citation »

  Proposes a concept of “transnational legal pluralism” which incorporates insights from sociologically inspired conceptions of legal pluralism. Seeks to challenge accepted associations between law and the state and instead consider the evolution of law in relation to the development of “world society.”

  Find this resource:

Selected Empirical or Analytical Case Studies

The fragmentation of public international law is often easiest to discern through examples of conflicting or coexisting legal regimes. There is a plethora of illuminating case-studies compiled using empirical and analytical research that document the phenomenon. Some contributions were compiled before the International Law Commission issued their recommended Professional Techniques Responding to Fragmentation, and demonstrate prescience as well as lasting influence. These include the Wolfrum and Matz 2003 study of conflicts in international environmental law and the Pauwelyn 2003 study of international trade law and its relationship with other areas of international law. Many works consider conflicting regimes that are supported by different (and differently empowered) international organizations, have different (or, at the very least, non-identical) members, and came into being with laws that were developed at different times and with different functions, thus drawing upon classic situations of fragmented public international law. Notable analyses are available on the links between, for instance, human rights and humanitarian intervention (in Orakhelashvili 2008); climate change and human rights (in Humphreys 2009); climate change and biodiversity (in van Asselt 2012) and fisheries agreements and trade law (in Young 2011). Many, such as Foster 2007 and its consideration of refugee law and the Ratner 2008 review of the laws of expropriation, focus on diverging approaches within a particular area of functional specialization, demonstrating that global problems do not fit neatly into self-contained legal solutions. This type of literature is useful not only in addressing specific, contemporary issues but in illustrating that the diversity and complexity of international law is part of its underlying character.

• Foster, Michelle. International Refugee Law and Socio-Economic Rights: Refuge from Deprivation, Cambridge, UK: Cambridge University Press, 2007.

  DOI: 10.1017/CBO9780511493980Save Citation »Export Citation »E-mail Citation »

  Not specifically focused on fragmentation, it nevertheless provides ample illustrations of the diversification of international law. Considers the question of whether there is a hierarchy of norms within international human rights law, and how this might impact upon recognition of refugee status in the refugee context.

  Find this resource:

• Humphreys, Stephen. “Introduction: Human Rights and Climate Change” In Human Rights and Climate Change. Edited by Stephen Humphreys, 1–34. Cambridge, UK: Cambridge University Press, 2009.

  DOI: 10.1017/CBO9780511770722.002Save Citation »Export Citation »E-mail Citation »

  Part of a broader collection that considers rights perspectives on global warming. Argues that the human rights regime and the climate change regime have both convergences and dissimilarities. See also his “Structural Ambiguity: Technology Transfer in Three Regimes” (Humphreys 2012, cited under Public International Law Literature).

  Find this resource:

• Orakhelashvili, Alexander. “The Interaction between Human Rights and Humanitarian Law: Fragmentation, Conflict, Parallelism, or Convergence?” European Journal of International Law 19.1 (2008): 161–182.

  DOI: 10.1093/ejil/chm055Save Citation »Export Citation »E-mail Citation »

  Explores the interaction between the norms of international human rights and humanitarian law relating to torture, arbitrary detention, the right to life and procedural safeguards. Argues that international humanitarian law, as a lex specialis, does not displace human rights law because both regimes offer a similar level of individual protection.

  Find this resource:

• Pauwelyn, Joost. Conflict of Norms in Public International Law: How WTO Law Relates to Other Rules of International Law. Cambridge, UK: Cambridge University Press, 2003.

  DOI: 10.1017/CBO9780511494550Save Citation »Export Citation »E-mail Citation »

  A learned treatment of the legal issues surrounding situations of conflict between World Trade Organization agreements and other rules of international law, such as human rights or environmental norms. Published before the International Law Commission’s report, it foreshadows many of the important issues. See also his “Bridging Fragmentation and Unity” (Pauwelyn 2004, cited under Conflicts between Special Law and General Law (Lex Specialis Derogare Lege Generali))

  Find this resource:

• Ratner, Steven R. “Regulatory Takings in Institutional Context: Beyond the Fear of Fragmented International Law.” American Journal of International Law 102.3 (2008): 475–528.

  DOI: 10.2307/20456640Save Citation »Export Citation »E-mail Citation »

  Discusses fragmentation in the context of disparate international norms governing expropriation. Identifies significant inconsistencies but argues that harmonization is undesirable because it would undermine the policies that different regimes and their participants have deliberately chosen to implement. A relative early foray into a now burgeoning literature on the relationship between investment law and public international law.

  Find this resource:

• van Asselt, Harro. “Managing the Fragmentation of International Environmental Law: Forests at the Intersection of the Climate and Biodiversity Regimes.” New York University Journal of International Law and Politics 44 (2012): 1205.

  Save Citation »Export Citation »E-mail Citation »

  Considers the fragmentation within international environmental law with respect to the diverse treatment of forests by the climate and biodiversity regimes. Argues that traditional legal techniques such as the ones advocated by the International Law Commission Study Group need to be tailored due to the need within international environmental law for synergies and cooperation, rather than merely the resolution of conflicting norms.

  Find this resource:

• Wolfrum, Rüdiger, and Nele Matz. Conflicts in International Environmental Law. Berlin: Springer, 2003.

  DOI: 10.1007/978-3-662-05113-9Save Citation »Export Citation »E-mail Citation »

  A comprehensive analysis of theoretical and practical approaches to solving conflicts between international environmental treaties. Note also the German-language volume: Nele Matz, Wege zur Koordinierung völkerrechtlicher Verträge. Völkervertragsrechtliche und institutionelle Ansätze (Berlin: Springer, 2005).

  Find this resource:

• Young, Margaret A. Trading Fish, Saving Fish: The Interaction between Regimes in International Law. Cambridge, UK: Cambridge University Press, 2011.

  DOI: 10.1017/CBO9780511974526Save Citation »Export Citation »E-mail Citation »

  Drawing on examples from fisheries management regimes, environmental treaties and the international trade law regime, provides an analysis of the legal bases for regime interaction which emphasizes the role and influence of institutions (such as the Food and Agriculture Organization and the World Trade Organization) and non-state actors. Builds a theoretical justification for regime interaction that is not dependent on the consent of states.

  Find this resource: