Legal Committee Overlapping Jurisdiction of International Law - IDIA
Rutgers Model United Nations 9 international law, and as such, inherently take into account the underlying doctrines of this law. Current Status Between 2004 and 2005, the Study Group of the International Law Commission (ILC) received a number of reports regarding the fragmentation of international law. The Study group elected to combine the information included in these reports into two documents. The first would be an exhaustive compilation, authored by the Group’s chairman, and would detail the arguments and findings of the individual specified reports created by Study Group members. The second would be created by the Study Group as a body and would delineate the major themes and suggestions found in the larger, more indepth composition. 10 The ILC as a whole would go on to agree to and accept the conclusions of the Study Group. In its conclusions, the Study Group focused on a wide range of theoretical and pragmatic issues regarding the topic. First, the Study Group defined international law as a legal system in which individual laws and systems of laws are crafted in relation to other preexisting laws. When considering multiple laws that apply to a single situation, these laws will either be congruous and point to a single and equally compatible solution, or be incompatible and lend themselves to different means of handling the same issue. When differing laws lead to convergent rulings, the Study Group points to the Vienna Convention on the Law of Treaties as the most effective way of interpreting the laws leading to discrepancies. Here, the overarching goal is, to the extent possible, to interpret the norms of the varying laws to result in a single interpretation. The report goes on to define lex specialis as the principle that states that when multiple laws deal with the same subject matter, the law that is more specific takes precedence over the more general one. Lex specialis applies in a number of situations whether elements of treaties, general law, or some combination thereof are in question. 10 Official Records of the General Assembly, Sixtieth Session, Supplement No. 10 (A/60/10), paragraph 448.
Rutgers Model United Nations 10 The Study Group stresses that specialized law is often better apt to deal with the specific issue at hand, and thus the principle should not be widely abandoned. In most cases, the applicable general law is not entirely negated by its more specific counterpart; rather, it remains and can be used in an interpretation of the specific law. The Study Group goes on to comment on the basis of special regimes, often self-contained organizations that arise out of specialized international law that can arise out of regulations relating to a breach of law or laws that deal with especially focused laws. 11 General law still prevails in areas of special regimes that are not explicitly covered by their own laws. Due to the specialized nature of these regimes, they often may become irrelevant or ignored by constituent states. In these cases where the regime fails, general international law remains in effect. Furthermore, the Study Group defines the notion of lex posterior, which states that when parties to a treaty are also parties to an earlier treaty on the same subject matter, the provisions of the earlier treaty continue to apply so long as they do not conflict with the newer treaty. This concept only applies when the exact same states are party to both treaties, and for this reason lex posterior becomes difficult to enforce in an age where multilateral pacts are increasingly common. The group notes that lex posterior is most applicable when applied within a single regime or organization with relatively straightforward goals and principles and regular state adherents. When faced with conflicting treaties, states should make every effort to implement both to the extent that they are not radically incompatible and other parties to the treaties are not harmed. The Group recommended that when states enter into a treaty that could conflict with another, conflict clauses should be written into the document. These clauses, the ILC suggests, should not under any circumstances violate the rights of third parties in either treaty, should be as specific as plausible, and include means to settle further disputes that may arise. In this manner, overlapping provisions and enforcement measures would be 11 Official Records of the General Assembly, Fifty-sixth Session, Supplement No. 10 (A/56/10), paragraph 76.