FINNISH YEARBOOK OF INTERNATIONAL LAW pdf

FINNISH YEARBOOK OF
I
NTERNATIONAL LAW

FINNISH YEARBOOK OF
INTERNATIONAL LAW
Volume XIV, 2003
Ius Gentium Association
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Finnish Yearbook of International Law
Editor-in-Chief
Jan Klabbers
Executive Editor
Taina Tuori
Editors
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Petra Hagelstam
Katja Keinänen
Kati Kulovesi
Päivi Leino
Associate Editors
Jutta Gras Taru Kuosmanen Samuli Seppänen
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style at the end of this book.
– We look forward to hearing from you.

Finnish Yearbook of International Law (Vol. XIV, 2003)
__________________________________________________________________
v
i
Editorial Advisory Board
Chair Jarna Petman
Ruth Donner
Outi Korhonen Ari-Matti Nuutila
Kari Hakapää
Erkki Kourula Esa Paasivirta
Lauri Hannikainen
Pirkko Kourula Allan Rosas
Päivi Kaukoranta
Raimo Lahti Martin Scheinin
Esko Kiuru
Marja Lehto Markku Suksi
International Advisory Board
Chair Bengt Broms
Daniel Bardonnet Christian Dominicé Sir Ian Sinclair
Ove Bring Sir Robert Jennings Antti Suviranta
James Crawford Vladimír Kopal Hugh W.A. Thirlway
Vladimir Djuro Degan Shabtai Rosenne Holger Rotkirch
Bruno Simma
Honorary Board
Chair Kari T. Takamaa
Veijo Heiskanen Juhani Kortteinen Ritva Saario
Sirkku Hirvonen Tuomas Kuokkanen Matti Tupamäki
Juhani Parkkari
Contents
Articles

Matthew Craven
Unity, Diversity and the Fragmentation of International Law
3
Outi Korhonen:
The Problem of Representation and the Iraqi Elections
35
Inger Österdahl:
Relatively Failed. Troubled Statehood and International Law
49
Christoph Burchard:
Puzzles and Solutions: Appreciating Carl Schmitt’s Work on International Law as
Answers to the Dilemmas of his Weimar Political Theory
89
Viljam Engström:
Implied Powers of International Organizations: On the Character of a Legal
Doctrine
129
Samuel de Jaegere:
The ‘Belgian Thesis’ Revisited: United Nations Member States’ Obligation to
Develop Autonomy for Indigenous Peoples
159
Tuula Kolari:
Constructing Non-Compliance Systems into International Environmental
Agreements – A Rise of Enforcement Doctrine with Credible Sanctions Needed?
205
Tapio Puurunen:
International Online Dispute Resolution – Caveats to Privatizing Justice
233
James Summers:
The Status of Self-determination in International Law: A Question of Legal

Significance or Political Importance?
271
Michel Béniard:
La médiation officieuse: la specificité des bons offices dans la gamme des procédures
non juridictionelles de règlement pacifique des différends
295
Timo Koivurova:
The Importance of International Environmental Law in the Arctic
341
Finnish Yearbook of International Law (Vol. XIV, 2003)
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Book Reviews & Review Articles
Jan Klabbers, An Introduction to International Institutional Law (Viljam Engström)
355
Karen Knop, Diversity and Self-determination in International Law (James Summers)
358
Kimmo Nuotio (ed.), Europe in Search of Meaning and Purpose (Tobias Bräutigam)
365
Michael Freeman, Human Righs. An Interdisciplinary Approach (Miia Halme)
369
General Information for Authors 377
Ius Gentium Association
389
Articles

Unity, Diversity and the Fragmentation of
International Law
Matthew Craven

*
In recent years a burgeoning literature on the apparent ‘fragmentation’ of
international law has been developing.
1
It is not a term that has a long history, and is
most frequently associated with the problems emerging from the recent
proliferation of international courts and tribunals
2
and the associated development
of autonomous, or semi-autonomous regimes, within the field of international law.
3
Whilst the emergence of new courts and tribunals may well have altered the shape
and tenor of international legal activity, it is equally apparent that the issues caught
within the snare of the debate are by no means quite as recent. The idea of a
fragmenting international law brings into question issues such as the systemic
character of international law, the lack of hierarchy, the absence of centralised
institutions, and the problems of professional specialisation, all of which have been
particular points of debate for many decades. Indeed, as the International Law
Commission (ILC) has articulated it, the problem has its origins in the
‘diversification and expansion’ of international law
4
– processes which were
themselves heralded by Friedmann in the 1960s as emblematic of what he saw to be
the ‘changing structure of international law’.
5

*
Reader in International Law, School of Oriental and African Studies, University of London.
1
See generally, Symposium, 31 New York University Journal of International Law and Politics (1999); Martti

Koskenniemi and Päivi Leino, ‘Fragmentation of International Law? Postmodern Anxieties’, 15 Leiden
Journal of International Law (2002) 553;
2
See e.g., Jonathan I. Charney, ‘Is International Law Threatened by Multiple International Tribunals?’,
271 Hague Recueil des Cours (1998) 101; Gilbert Guillaume, ‘The Future of International Judicial
Institutions’, 44 International and Comparative Law Quarterly (1995) 862; Robert Jennings, ‘The Role of the
International Court of Justice’, 68 British Year Book of International Law (1997) 58.
3
For an early discussion of this see Bruno Simma, ‘Self-Contained Regimes’, 16 Netherlands Yearbook of
International Law (1985) 111.
4
International Law Commission, Report of 55
th
Session, UN GAOR, Supp. No. 3, UN doc. A/58/10
(2003) 267.
5
Friedmann M., The Changing Structure of International Law (Stevens & Sons: London, 1964)
Finnish Yearbook of International Law (Vol. XIV, 2003)
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Even if it is not entirely new, two particular features stand out in the current
debate. First that although the process is cast in pejorative terms – fragmentation
being associated with incoherence, disunity, and uncertainty – it is by no means the
case that it is actually viewed as such. Just as much as we are told of the ‘dangers’ of
fragmentation, so also we are encouraged to think of them as marks of success.
6
Talk about fragmentation, in that respect, seems to be heavily encoded: concern for
the overspill of adjudication seems to be a surrogate for demonstrating to detractors
that international law is not institutionally weak; anxiety as to normative

inconsistency, is simply a manifestation of the maturity of the system and a
demonstration of its normative breadth and depth; insecurity as to the absence of
normative hierarchy, seems only to be an argument that the time is right for its
articulation. These are not problems at all, we seem to be told, they are in fact
strengths.
7
If this were to be the case, then, the debate might simply be recast in
terms of pluralism, complexity and context sensitivity without any particular
descriptive loss. Koskenniemi, for example, suggests that:
[f]ar from being a problem to resolve, the proliferation of autonomous or semi-
autonomous normative regimes is an unavoidable reflection of a ‘postmodern’
social condition and a beneficial prologue to a pluralistic community in which the
degrees of homogeneity and fragmentation reflect shifts of political preference
and the fluctuating success of hegemonic pursuits.
8
Koskenniemi seems to assume, however, that the pursuit of hegemonic interests is
necessarily to be associated with the maintenance or creation of homogeneity in
international law and that, by contrast, pluralist fragmentation is a beneficial anti-
6
In some evaluations this is explicit, see e.g., Georges Abi-Saab, ‘Fragmentation or Unification: Some
Concluding Remarks’, 31 New York University Journal of International Law and Politics (1999) 919, at 925
(‘the multiplication of specialised tribunals is, by itself, a healthy phenomenon. Its description by the
term ‘proliferation’, with its negative connotations, is misleading’). Benedict Kingsbury, 'Foreword: Is
the Proliferation of International Courts and Tribunals a Systemic Problem?', 31 New York University
Journal of International Law and Politics (1999) 679, at 686 (‘whatever the hazards of non-hierarchical
proliferation, it has been the only way, and perhaps a very good way, to increase third-party settlement
in international disputes through law-based forums. This in turn is regarded as an immense
contribution in making more disputes effectively justiciable in practice, and in deepening the body of
authoritative pronouncements of international law – the better to guide legal actors and to make future
adjudicative decisions more predictable.’)

7
See e.g., Thomas Franck, Fairness in International Law and Institutions (Oxford University Press, 1995) at
4-6 (‘International law has entered the stage of the practitioner-specialist. Specialization is a tribute
which the profession pays to the maturity of the legal system…. This specialization reflects the fact
that the law of the international community has, through maturity, acquired complexity.’)
8
Martti Koskenniemi, ‘What is International Law For?’, in Malcolm D. Evans (ed.), International Law
(Oxford University Press, 2003) 89, at 110.
Unity, Diversity and the Fragmentation of International Law
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toxidant. It might be argued, nevertheless, that the fragmentation of a unified
discourse of international law might either allow the prioritisation of particular
projects (and value sets) at the expense of others, or at least provide the terrain
upon which certain values might come to flourish and others perish. Even if not, at
the outset, a hegemonic strategy, it might well come to be so.
9
If fragmentation is
occurring, therefore, there is no obvious reason to suppose that it is entirely benign,
and one may suppose the persistence of the terminology itself is at least suggestive
of a continuing ambivalence in that regard.
The second feature of the current debate is that whilst the overt instances in
which the problem has arisen have been associated with the apparent
incompatibility between various sectors of international law – the competition
between trade and the environment, law of the sea and fisheries regulation, human
rights and state immunity – these seem to be merely symptomatic of something
more fundamental. If it were simply a matter of normative incompatibility or
judicial communication, such problems would be open to remedy – by, for example,
developing rules of hierarchy (temporal, normative, or conceptual) or machinery for

institutional dialogue. The sense is, however, that the underlying problem is one
that is not open to any simple remedy and is concerned rather with the
fragmentation of the basic ‘systemic rules’– the ‘rules of the game’ – that underpin
the idea of international law as a unitary domain of action and thought. The threat
that seems to be perceived is one in which international law will eventually dissolve
into a series of specialised, project-specific, regimes operating with little or no
consistency between them as regards the relevant actors, institutional priorities,
modes of settlement or framing suppositions.
10
International law would no longer
be a singular endeavour, nor even a meta-systemic system, but merely an empty
rhetorical device that loosely describes the ambit of the various discourses in
question.
11
It is, however, still a matter of debate as to whether a fragmentation of
international law is actually occurring. Cassese suggests by way of contrast, for
example, that
9
Cf., Michael Hardt and Antonio Negri, Empire (Harvard University Press: Cambridge, Mass., 2000) at
138 (‘When we begin to consider ideologies of corporate capital and the world market, it certainly
appears that the postmodernist and postcolonialist theorists who advocate a politics of difference,
fluidity, and hybridity in order to challenge the binaries and essentialism of modern sovereignty have
been outflanked by the strategies of power. Power has evacuated the bastion they are attacking and
has circled around to their rear to join them in the assault in the name of difference.’)
10
See, Abi-Saab, ‘Fragmentation or Unification’, supra note 6, at 926.
11
Cf. Jean Combacau, ‘Le droit international: bric-à-brac ou système?’, 31 Archives de Philosophie du Droit
(1986) 85.
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[t]he gradual interpenetration and cross-fertilization of previously somewhat
compartmentalized areas of international law is a significant development: it
shows that at least at the normative level the international community is
becoming more integrated and – what is even more important – that such values
as human rights and the need to promote development are increasingly
permeating various sectors of international law that previously seemed
impervious to them.
12
For Cassese, and others no doubt, international law is on a different trajectory.
Compartmentalization (qua fragmentation) is receding, not encroaching, and closer
integration is being achieved through processes of permeation or ‘cross-fertilisation’.
What people call fragmentation, on such a view, might simply be the unavoidable
side-effects of what are more broadly integrative processes. Whilst undesirable, they
are not necessarily harmful.
The intention in this paper is neither to take a position upon whether
fragmentation as understood by the authors above is actually occurring, nor to
advance a thesis that it is either benign or malign. Rather, the intention is to explore
what it is we might mean by fragmentation: what forms of fragmentation might be
identified and what are the domains in which it might come to assume prominence?
Since, at the outset, the idea of fragmentation seems to address itself directly to the
endurance of international law as a system, consideration of that particular issue will
be taken as the starting point. From there, the issue of fragmentation will be
examined in relation to two well-known domains of activity and debate (reservations
to treaties and state responsibility), with a view to exploring the thematic variegation
associated with it. Ultimately, the argument pursued in this paper is that
fragmentation, when understood in terms of an increasing diversity in norms,
processes, actors and institutions is not something against which international law as
a systemic enterprise is necessarily set. Rather, fragmentation is produced through

precisely the same processes which are used to contain or control diversity.
International Law as a System
The idea that international law is a systemic enterprise appears in many accounts to
be almost axiomatic.
13
Once we embark upon the study of international law – once

12
Antonio Cassese, International Law (Oxford University Press, 2001) at 45.
13
Pierre-Marie Dupuy, ‘The Danger of Fragmentation or Unification of the International Legal System
and the International Court of Justice’, 31 New York University Journal of International Law and Politics
(1999) 791, at 793.
Unity, Diversity and the Fragmentation of International Law
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indeed we pose the question as to the nature of international law, or ask about it in
some way – we are already disposed to understanding it in some systemic totality.
Certainly if we speak in terms of ‘fragmentation’, the systemic unity of international
law appears to be already preconfigured, articulated as an essential hypothesis. With
a bravado characteristic of those who try to engage with the question, Dominicé
observes, for example, that a sociological analysis would suggest that:
within the framework of international society, whose basic structure is a plurality
of sovereign states, there exists a system of legal rules termed and recognised as
such. This conclusion is buttressed by the finding that there is a sort of
collective opinio iuris, a conviction that international law exists and that States
could not do without it. There is no need to seek a theoretical foundation to
justify this assertion, which results from a mere observation of reality and is
expressed by the maxim ubi societas ibi ius.

14
Note how the ‘system of legal rules’ is articulated at the outset as a ‘conclusion’, to
be ‘buttressed’ by, rather than ‘founded’ upon, a collective opinio iuris. Note also the
simultaneous unwillingness to engage with ‘theory’ and the reliance instead upon a
simple maxim – where there is society there is law. The systemic character of
international law, furthermore, seems to be so closely entwined with the prior
question as to whether it is law at all, that any serious engagement with it appears
almost impossible.
It is clear that international law doesn’t have to be articulated in terms of a
system. It may, in fact, be understood in a number of alternative ways none of
which necessarily implies anything particularly systemic: as a category description of
the professional outlook of those engage with it;
15
as a domain of discourse between
significant agents; as an empirical array of practices; or perhaps merely as the
vocabulary employed by a community of scholars and practitioners. Indeed, it is
evident that usage of the term ‘system’ in relation to international law has close
associations with the style of formal analytical jurisprudence that has come to be
imprinted, in particular, within the European tradition. Those more closely
associated, by contrast, with the pragmatism of the American realist tradition seem
to have no need for the idea. Nor do others of a broadly empirical bent, or those
14
Christian Dominicé, ‘Methodology of International Law’, Encyclopaedia of Public International Law
p. 334.
15
Cf. Pierre Bordieu’s notion of habitus, as the conditioning assumptions which predispose particular
outlooks, Pierre Bordieu, The Logic of Practice (Polity: Cambridge, 1990) at 53.
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concerned with articulating international law in terms of a ‘process’ rather than
rules.
16
Even if one were to reduce the idea of a ‘system’ to a mere homogeneity of
outlook, its articulation is by no means easy. We are all very familiar, for example,
with the idea that the conception of international law may vary by reference to
ideology (consider, for example, the idea of ‘socialist international law’), or by the
cultural and political circumstances in which it comes to be articulated (exemplified
in the idea of ‘international law as applied by the courts of X or Y countries’ or ‘the
approach of developing countries to international law’). We are all, furthermore,
familiar with the various ‘schools’ of thought whose influence has spread through
the discipline at various junctures in time, the points of divergence being
occasionally narrow, but in other respects quite profound.
17
Diversity has been a
central feature of both the theory and practice of international law for centuries, and
it has only been by way of articulating such differences as mere matters of style or
inflection (projecting divergences as internal modulations rather than external
challenges) that the project has remained in any sense cohesive.
18
Yet, with all the divergence and disunity that characterises the domain, it is
hard not to think about international law in a way that doesn’t invoke some idea of
structure or system. In speaking about sources, personality, sovereignty or
jurisdiction, for example, if only for purposes of noting the internal contradictions
or lack of coherence within each, is at least suggestive of something unitary about
the endeavour however imperfect that unity might be. These general theoretical
constructs seem to define the domain in a particular way, and provide a basic
understanding of the boundaries of the trade. Even Carty, for example, who
maintains that since states exist in a state of nature ‘there is no legal system which

defines comprehensively the rights and duties of States towards one another’, seems
to admit that a system might exist in a less than comprehensive form.
19
16
One finds, for example, little mention of a ‘system’ in the work of McDougal however ‘systematic’ it
might seem. See e.g., Myres McDougal and Florentino Feliciano, Law and Minimum World Public Order
(Yale University Press: New Haven, 1961). Cf., Rosalyn Higgins, Problems and Processes: International Law
and How We Use It (Oxford University Press, 1994) at 1 (‘International law is not rules. It is a
normative system. All organized groups and structures require a system of normative conduct…’).
17
For a survey of the various dynamics of the US tradition, in this respect, see, David Kennedy, ‘When
Renewal Repeats: Thinking Against the Box’ 32 New York University Journal of International Law and
Politics (2000) 335.
18
David Kennedy, ‘The Disciplines of International Law’, 12 Leiden Journal of International Law (1999) 9,
at 18.
19
Cf. Anthony Carty, The Decay of International Law? A Reappraisal of the Limits of Legal Imagination in
International Affairs (Manchester University Press, 1986) at 1.
Unity, Diversity and the Fragmentation of International Law
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Of course the debate over fragmentation seems to invest in the idea of a
‘system’ something more concrete than this. In some degree, the person to whom
credit might be given for diagnosing what it is that people mean when speaking
about a system of international law is H.L.A. Hart in his work The Concept of Law
published in 1961.
20
The Concept of Law, whilst being a staple of Anglo-American

jurisprudence, has never became a prime point of reference for international lawyers
– partly, one may think, as a consequence of his essentially sceptical stance as
regards the claims made in respect of international law,
21
partly perhaps as a
consequence of his style and method.
22
By the same token, the analytical framework
he articulated, finds significant resonance in debates that impinge upon the systemic
character of international law – debates which themselves have implications for the
question of fragmentation. There are several particular features of Hart’s work that
stand out in the current context.
At the outset, whilst overtly being an exercise in formal analytical
jurisprudence, Hart distinguished his concept of law from that of the continental
jurisprudence of Kelsen
23
and Ross
24
with which it has certain affinities. He did so,
in part at least, by seeking to base his thesis upon what may broadly be described as
a thin developmental sociology.
25
Like Weber, who saw the emergence of ‘a
logically clear, internally consistent… gapless legal system’ as a component part of
the emergence of modern bureaucratic society,
26
Hart distinguished the kind of law
to be found in ‘primitive societies’ from that associated with the development of a
modern legal system. The key feature of this transition from primitive to modern,
in Hart’s view, was the emergence of secondary rules – broadly articulated as ‘rules

20
H.L.A. Hart, The Concept of Law (Clarendon Press: Oxford, 1961). See further, Neil MacCormick,
H.L.A. Hart (Arnold: London, 1981); Michael Martin, The Legal Philosophy of H.L.A. Hart (Temple
University Press: Philadelphia, 1987); Michael Bayles, Hart’s Legal Philosophy (Kluwer: Deventer, 1992).
21
See, Ian Brownlie, ‘The Reality and Efficacy of International Law’, 52 British Year Book of International
Law (1981) 1
22
Franck, Fairness in International Law and Institutions, supra note 7, at 185. He argues that Hart’s
‘exaggerated critique’ of the international system is coloured by ‘Austinian positivism, which was more
fashionable among legal scholars then than now’.
23
Hans Kelsen, General Theory of Law and State (Harvard University Press: Cambridge, 1949)
24
Alf Ross, On Law and Justice (University of California Press: Berkeley, 1958).
25
In the preface Hart describes his book as ‘an essay in descriptive sociology’, Hart, The Concept of Law,
supra note 20, preface. Cotterrell notes, however, that this merely represents a ‘kind of sociological
drift… but no serious sociology’. Roger Cotterrell, The Politics of Jurisprudence (Butterworths: London,
1989) at 96.
26
Max Weber, Economy and Society: An Outline of Interpretive Sociology (University of California Press:
Berkeley, 1978) at 656.
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about rules’ – without which law would remain uncertain, static and inefficient.
27
It

was, furthermore, in the identification (and acceptance) of such secondary rules –
and specifically rules of recognition, adjudication and change – that one may discern
the existence of a legal ‘system’.
28
International law, however, in Hart’s view
possessed no secondary rules of this kind, and therefore assumed the form of a
simple social structure characterised by the presence of an ad hoc collection of norms
of conduct whose effect was dependent upon diffuse social pressure.
29
It was, he
suggested, possible that international law may be ‘in a stage of transition’, but it had
not, at that point, become a system of law.
Two particular aspects of Hart’s analysis, in this respect, have a descriptive
appeal in terms of the way in which international lawyers tend to approach the
systemic dynamics of international law, and hence the question of fragmentation.
The first is a broad tendency to accept the idea of a developmental sociology
underlying the overall endeavour. The idea of international law as a project open to
further development and systematisation through which it may be made more
efficient, coherent and dynamic (and hence less primitive
30
) is a familiar trope. The
words ‘development’ and ‘codification’, of course, have featured consistently in
international legal endeavours at least since the League of Nations era and may be
thought expressive both of a broadly instrumentalist outlook (of the will to change
society through law) and also expressive of the idea that international law itself – its
structures and processes – are open to evolutionary and progressive perfection. The
Statute of the International Law Commission, for example, which was bought into
being by the General Assembly in 1947 as an institution designed to assist it in
encouraging ‘the progressive development of international law and its
codification’,

31
mandates it specifically with the task of fostering ‘more precise
formulation and systematisation of rules of international law in fields where there
27
Hart, The Concept of Law, supra note 20, at 89-96. One may note the parallels here between Hart’s
inflections on the conditions of primitivism, with Franck’s ideas concerning the conditions under
which rules may exercise a strong ‘pull to compliance’.
28
Ibid., at 113 (‘There are therefore two minimum conditions necessary and sufficient for the existence
of a legal system. On the one hand those rules of behaviour which are valid according to the system’s
ultimate criteria of validity must be generally obeyed, and, on the other hand, its rules of recognition
specifying the criteria of legal validity and its rules of change and adjudication must be effectively
accepted as common public standards of official behaviour by its officials’).
29
Ibid., at 230-1.
30
For explicit use of this term see e.g., J.L. Brierly, The Law of Nations: An Introduction to the International
Law of Peace (Clarendon Press: Oxford, 1963) at 73
31
Article 13 of the United Nations Charter, 26 June 1945, in force 24 October 1945, 1 United Nations
Treaty Series xvi.
Unity, Diversity and the Fragmentation of International Law
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11

already has been extensive State practice, precedent and doctrine’ [italics added].
32
Its role, in other words, is not merely the articulation of new rules upon a bedrock
of practice, precedent and doctrine, but also, and significantly, their
conceptualisation within the embrace of a singular code. Systematization seeks to

make homogeneous, the empirically heterogeneous, and create a whole out of
disparate parts.
The second feature of Hart’s analysis that appears to reflect a continuing mode
of thought is his emphasis upon the existence of secondary rules as the main
condition for the creation and maintenance of a system of international law. The
attraction of Hart’s analysis for international lawyers, in this respect, is its overtly
non-institutional thrust: it is not, he seems say, the existence or otherwise of
institutions that makes law systemic, but rather the existence of power-conferring
secondary rules addressed to the relevant ‘insiders’. Whilst it is evident that
institutions were far more central to Hart’s account than he might have wished to
acknowledge,
33
and whilst Hart was clearly sceptical as to the existence of secondary
rules in international law, it is in the potential inconsistencies developing as regards
secondary, or ‘structural’ rules, that one finds much of the debate over
fragmentation located.
34
It is not, in other words, purely in the fact that specialised
regimes dealing with human rights, trade, environmental law or the like have
emerged within international legal practice, or indeed that each of these regimes
appears to operate on a largely autonomous basis. Rather it is in the fact that each
of these regimes projects outwards a particular conception of international law – a
conception extending to considerations such as the source of obligation, the identity
of relevant actors, the method by which competing interests are to be weighed, or
the basis for responsibility – that seems to call into question the integrity of the
whole. Koskenniemi argues, for example, that fragmentation
‘is not a technical problem resulting from lack of coordination…. [but rather] a
hegemonic struggle where each institution, though partial, tries to occupy the
space of the whole’.
35

32
Article 15 Statute of the International Law Commission.
33
It is arguable that Hart was ultimately concerned with grounding the authority of political institutions
in law – justifying, in other words, the notion of a rechtstaat – rather than viewing them as bodies
whose power and authority was essentially extraneous to law or legal control. In contrast to Austin,
Hart’s sovereign did not produce law, but was produced through it.
34
See e.g., L. Barnhoon and K. Wellens (eds.), Diversity in Secondary Rules and the Unity of International Law
(Martinus Nijhoff Publishers: The Hague, 1995).
35
See e.g. Koskenniemi, ‘What is International Law For?’, supra note 8 , at 110.
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2
The threat of fragmentation, in other words, is found in the idea that this systemic
pluralism is either equivalent to, or productive of, an a-systemic primitivism.
In some respects these two ideas run against each other. The idea that
international law has yet to complete the process of ‘systematisation’, sits
uncomfortably with the idea of fragmentation as a dangerous proliferation of
secondary, structural, rules. This has its analogue in a much remarked upon
circularity in Hart’s own account, in which he appears to try to locate the authority
of judges in legal rules, whilst making the existence of those rules subject to their
recognition by judges.
36
Certainly one may describe any system in terms of being
open, or closed, dynamic or static, but however described the problem of the
‘constitutional moment’ (how one explains, in terms internal to the system, how the
system itself came into being) will always remain.

37
As a diachronic narrative,
therefore, progressive systematisation appears in tension with that of fragmentation.
By the same token, one sees an inherent dialectic here. A system is a system by
reason of its ability to unify a diversity of experience – it must be simultaneously
homogeneous and heterogeneous, unified but multipolar. A system of international
law, in other words, must draw upon and recognise differences between regimes,
actors, institutions and processes – it cannot merely be diffident. To be, or remain,
a system, by contrast, difference and diversity must be disciplined, regularised, and
contained within particular boundaries. One sees, in other words, on the one hand
a relational repositioning of the central tenets of international law as a response to
ideas emerging from particular sites of activity – a repositioning of the debate over
responsibility as a response to developments in the field of environmental law, or
that of ‘personality’ as a response to developments in the field of institutional law,
or that of ‘domestic jurisdiction’ as a response to developments in the field of
human rights. On the other hand, one also sees an attempt to confine or constrain
the understanding of each site of activity within some general framework that
maintains the integrity of the whole. Not only does this mean the upholding of
certain structural features whilst others are changed, but also imprinting on the sites
of activity themselves some coherent teleology which they do not necessarily
possess. The assumption, for example, that human rights are concerned with the
promotion of individual freedom at the expense of State authority, or that
international economic law is concerned with the elimination of protective
regulation in favour of ever more free-trade, only thinly disguises the various
schisms, or points of divergence, that run through each.

36
See e.g., Neil MacCormick, Legal Reasoning and Legal Theory (Clarendon Press: Oxford, 1978) at 54-5.
37
Cf. Derrida’s critique of the Declaration of Independence, Jacques Derrida, Otobiographies:

l'enseignement de Nietzsche et la politique du nom propre (Galilée: Paris, 1984) at 21-22.
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When viewed in this light, the argument about system and fragmentation in
international law becomes somewhat more involved. It can no longer be articulated
simply in terms of a tension between generalists and specialists, or between two
different sites in which centrifugal or centripetal forces are to be found. It is
transformed, rather, into a complex melée in which competing ideas of unity and
diversity are produced and reproduced at all of the various points at which the
debate is engaged. It is no longer a question of unity or diversity, system or
fragmentation, but rather what variant of each, and in what measure?
Before examining the processes by which the dialectics of universality and
difference work their way through various ‘structural’ debates, two particular
difficulties highlighted by Hart himself need emphasising. First of all, it is apparent
that the articulation of the systemic unity of international law in terms of the
existence of secondary rules depends upon a functional differentiation between rule
types that is hard to maintain in the absence of centralised institutions for law-
making or adjudication. Whilst, as it has been suggested, Hart’s account was overtly
non-institutional (institutions existing only in the shadows of ‘power conferring
rules’), the identification of any particular rule as being ‘secondary’ as opposed to
‘primary’ in nature, seems to rest largely upon the identity of those to whom it is
addressed.
38
Hence his observation that international law suffered from there being
no differentiation between sovereign and subject.
39
His point seems to be that since
all rules can be cast in behavioural terms, the inability to differentiate between States

as subjects of the law and States as law-makers and adjudicators – between those
who Hart would characterise as being ‘internal’ to the system – makes the
discernment of secondary rules particularly difficult.
Hart was particularly caustic, in this respect, of the attempts made by certain
jurists to locate the source of obligation in international law in the rule pacta sunt
servanda. Pacta sunt servanda, in his view, was merely another primary rule of conduct.
Whether or not this example was a particularly good one, given the underlying
question whether treaty rules themselves are to be regarded as rules of international
law or rather as the incidental subject matter of private agreements, the point applies
more generally. Thus, for example, rules concerning the recognition of States might,
if formulated in one way, be characterised as primary rules of behaviour (i.e. a State
should not give recognition to a secessionist entity prior to it becoming effective). If
formulated differently, however, they might equally be presented as secondary (i.e.
38
This was not entirely the case as Hart recognised the possibility of private actors having the power to
change obligations assumed by others. Ross, by contrast, understood secondary rules as those
addressed to judges.
39
Hart, The Concept of Law, supra note 20, at 215.
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States have the power, whether acting alone or in concert, to effectively adjust or re-
allocate primary rights and obligations in case of certain events arising). Similarly,
rules on immunity may be regarded, from one point of view, as primary in the sense
that they require judicial restraint in matters iure imperii, but appear also to be
secondary in the sense that they affect the right of enforcement of other primary
rules (such as the prohibition on torture or genocide). Even the concept of ius cogens,
whilst nominally appearing to be secondary – in the sense that it is concerned with

the creation of a hierarchy between rules of conduct – may also be seen as merely
descriptive of the material scope of certain norms of behaviour.
It is apparent furthermore that Hart’s scepticism as concerns the claim that
international law was a systemic endeavour had a good deal more to do with what
he saw to be the lack of sociological integration within international society, than
any real concern as to the function of particular rules. In discussing the efficacy of
sanctions, for example, he argues that ‘in societies of individuals, approximately
equal in physical strength and vulnerability, physical sanctions are both necessary
and possible’. But, he continues, just because such simple truisms hold good for
individuals, they may not do so for states, ‘and the factual background to
international law is so different from that of municipal law, there is neither a similar
necessity for sanctions… nor a similar prospect of their safe and efficacious use.’
40
Even for the most powerful state, he points out, to initiate a war is ‘to risk much for
an outcome which is rarely predictable with reasonable confidence’. Furthermore,
because of the inequality of States, ‘there can be no standing assurance that the
combined strength of those on the side of international order is likely to
preponderate over the powers tempted to aggression’. The organisation and use of
sanctions, in other words, ‘may involve fearful risks and the threat of them add little
to the natural deterrents’.
41
Here, Hart brings to the fore his real anxiety. In conflating rule types with
forms of social organisation, Hart might have been read as offering the view that
normative development itself was sufficient to transform a set of rules of behaviour
into a system of law, and hence to provide the conditions for civilised society. Such
an instrumental vision, however, was obstructed, as far as Hart was concerned, by
the social-psychological motors of international society. Would it ever be possible,
he seems to ask, absent the creation of centralised responsible institutions, to
organise a system of law that would be anything other than counterproductive?
Wouldn’t the attempts to justify processes of law-making, adjudication and

enforcement by way of the articulation of secondary rules risk their subversion by
40
Ibid, at 214.
41
Ibid.
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5
hegemonic interests? As we shall see, Hart’s concerns in this respect, neatly
summarise some of the concerns arising in respect of subsequent system-building
activities undertaken by the International Law Commission.
The Dialectics of System and Fragmentation
As suggested above, the concept of a system of law supposes both unity and
diversity. It has also been suggested that any system-oriented project (any process
aimed at the unification and integration of international law) will necessarily seek to
both reflect the diversity of experience and embrace all fields of international legal
activity, whilst simultaneously seeking to discipline, order, or control, that diversity
in a way that makes the system feasible or meaningful. As will be shown, however,
the process of systematisation is one which itself is productive of fragmentation.
Unification will necessarily imply differentiation, and that differentiation will
necessarily give rise to new forms of fragmentation which themselves will threaten
the unity that is originally sought. Fragmentation, in other words, is not something
that merely pre-exists the systemic enterprise, something against which the
unification of international law is always directed, but something that is produced
through it and with which it consistently engages.
In order to explore the dynamics of this process, two particular issues that
have some bearing upon the current debate concerning the fragmentation of
international law will be examined – the first is concerned with the issue of
reservations to treaties (with particular reference to human rights treaties), the

second with state responsibility. There is no compulsion in the choice of these
examples – they are merely representative of two areas of law in which the dynamics
of unity and fragmentation can usefully be explored. In both cases, furthermore,
the debate has been rendered in terms of a broad narrative that seeks to locate the
various argumentative moves in some form of sequence. This has been undertaken,
however, less for purposes of articulating an accurate history of each, but rather as a
heuristic exercise with the intention of exposing, in a context in which the
arguments themselves are relatively well-known, the relationship between system
and fragmentation, unity and difference.
A Story About Reservations
In the context of the ongoing work of the International Law Commission on
reservations to treaties, there is a continuing debate as to the salience of the regime
on reservations articulated in Articles 19-23 of the Vienna Convention on the Law
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6
of Treaties
42
to ‘normative’ (and particularly human rights, or humanitarian) treaties.
On the one side in the current debate one finds the International Law Commission
that has bound itself to maintain the integrity of the Vienna Convention regime
whilst seeking to accommodate, in its continuing work on the subject, the particular
concerns expressed by institutions for the protection of human rights.
43
On the
other, one finds the human rights bodies themselves, largely situating their practice
outside the terms of the Vienna Convention, and arguing that they are
‘inappropriate’ and ‘inadequate’ for purposes of dealing with reservations to such
instruments.

44
Here, one finds, a small element of the ‘fragmentation’ debate being
acted out.
In order to make some sense of this, it is worthwhile stepping back to examine
how the debate has emerged more generally within the context of international law.
The problem of reservations essentially began shortly after the moment at which the
international community embraced multilateral treaty making as the primary mode
by which collective interests would be pursued on the international plane.
45
This
form of multilateralism seemed to be premised upon the need to overcome the
perceived dangers of a fragmented world by way of encouraging, universal adhesion
to a singular set of values. As Paul Reuter argues, multilateral agreements emerged
not simply by reason of a desire for simplification, but for the purpose of defending
‘the common interests of mankind’ out of a sense of global solidarity.
46
It was
always evident, however, that meaningful treaty making involved the elaboration of
rules designed either to change the status quo or reinforce it, and, in that respect,

42
Vienna Convention on the Law of Treaties (1969), 1155 U.N.T.S. 331.
43
See e.g., ‘Preliminary Conclusions of the International Law Commission on Reservations to
Normative Multilateral Treaties, Including Human Rights Treaties’, 49 ILC Rep. (1997) 52 GAOR,
Supp. No. 10, (1997) 112.
44
General Comment No. 24(52), UN Doc. CCPR/C/21/Rev.1/Add.6, para. 17. See generally,
Yogeshi Tyagi, ‘The Conflict of Law and Policy on Reservations to Human Rights Treaties’, 71 British
Year Book of International Law (2000) 181; Konstantin Korkelia, ‘New Challenges to the Regime of

Reservations under the International Covenant on Civil and Political Rights’, 13 European Journal of
International Law (2002) 437; Rosalyn Higgins, ‘Human Rights: Some Questions of Integrity’, 52 Modern
Law Review (1989) 1; C. Redgwell, ‘Universality or Integrity? Some Reflections on Reservations to
Multilateral Treaties’, 64 British Year Book of International Law (1993) 245; Liesbeth Lijnzaad, Reservations
to UN Human Rights Treaties: Ratify and Ruin? (Martinus Nijhoff: Dordrecht, 1994); Susan Marks,
‘Reservations Unhinged: The Belilos Case Before the European Court of Human Rights’, 39
International and Comparative Law Quarterly (1990) 300; Dinah Shelton, ‘State Practice on Reservations to
Human Rights Treaties’, 1 Canadian Human Rights Yearbook (1983) 205; M. Coccia, ‘Reservations to
Multilateral Treaties on Human Rights’, 15 California Western International Law Journal (1985) 1.
45
One of the earliest examples being the French reservation to the General Act of the Brussels
Conference in 1890.
46
Paul Reuter, Introduction to the Law of Treaties (Kegan Paul: London, 1995) at 2-3.
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would constantly be faced by particular forms of resistance premised upon notions
of economic, social, political or cultural difference.
47
It was by way of
accommodating such difference that reservations came to be an accepted feature of
instruments of adhesion to multilateral instruments. They were simply the price of
universalism.
In the time of the League of Nations reservations, to be effective, required the
unanimous acceptance on the part of other States parties.
48
Difference, in other

words, could be accommodated, but only so far as it was considered consistent with
the multilateral endeavour as understood by each and every state party individually.
Difference was constrained and regularised, tolerated only within limits. From the
perspective of existing states parties, this ensured the integrity of their endeavour,
but by the middle of the 20
th
Century it became clear that by making the instrument
of ratification with appended reservation subject to the effective veto of other states
parties, the process of adherence to many such multilateral agreements had been
obstructed and their entry into force delayed. The International Court of Justice was
then called upon to review the problem in the particular context of the Genocide
Convention.
49
At the outset, the Court was clearly faced with two forms of fragmentation.
On the one hand, it was faced with the problem of seeking to assist the
universalisation of multilateral law-making in the context of an ‘expanding’, and
hence more fragmented and pluralistic, international society. With a greater number
of potential participants in the general regime, bringing with them a greater range of
cultural and political sensitivities, the possibilities of universal ratification were
apparently diminishing. And all the more so, if the regime on reservations
essentially provided each and every state party a prospective veto over the
participation of other reserving states. On the other hand, it was faced with the
problem posed by the application of a singular, unified, rule on reservations to what
was becoming an increasingly diverse array of instruments. The insistence that all
treaties were essentially alike (broadly ‘contractual’ in nature) and therefore to be
subordinated to a singular set of principles seemed to have to give way in face of the
47
Tyagi identifies, for example, the major ‘causes’ of reservations to human rights treaties in terms of
domestic law constraints, higher national standards, ideological dissent, political objectives, vital
interests, harmonization of parallel obligations, precautionary measures, balancing acts, economic

constraints and religious fundamentalism. Tyagi, ‘The Conflict of Law’, supra note 44, at 190-201.
48
Report of the Committee of Experts for the Progressive Codification of International Law, 8 League
of Nations Official Journal (1927) 880. See, A.D. McNair, The Law of Treaties (Clarendon Press: Oxford,
1961) at 162-3, 173-7.
49
Reservations to the Genocide Convention Case, Advisory Opinion, ICJ Reports (1951) 15.