INTERNATIONAL HUMANITARIAN LAW, INTERNATIONAL

HUMAN RIGHTS LAW, AND FRAGMENTATION OF

INTERNATIONAL LAW

I. INTRODUCTION

International tribunals and legal scholars have been considering the relationship
between International Humanitarian Law (‘IHL’) and International Human Rights Law
(‘IHRL’) for a number of years.1 The International Court of Justice famously or infa-
mously (depending on your perspective) considered their relationship in its Nuclear
Weapons Advisory Opinion in 1996.2 The Court concluded that while IHRL did apply
in times of armed conflict, when it came to the prohibition of arbitrarily taking human
life in Article 6 of the International Covenant on Civil and Political Rights 1966, the
content of that prohibition had to be found in the lex specialis of IHL.
More recently the Court revisited the relationship between IHL and IHRL in the
Wall Advisory Opinion.3 The Court expanded on its approach in the Nuclear Weapons
Advisory Opinion with the following observation:

1 Consider, eg, GIAD Draper, Humanitarian Law and Human Rights [1979] Acta Juridica
193; R Quentin-Baxter, ‘Human Rights and Humanitarian Law—Confluence or Conflict?’ (1980)
9 Australian Year Book of International Law 94; Leslie C Green, ‘Human Rights and the Law of
Armed Conflict’ (1980) 10 Israel Yearbook on Human Rights 9; Dietrich Schindler, ‘Human
Rights and Humanitarian Law: Interrrelationship of the Laws’ (1982) 31 American University
Law Review 935; Louise Doswald-Beck and Sylvain Vité, ‘International Humanitarian Law and
Human Rights Law’ (1993) 293 International Review of the Red Cross 94; Michael J Kelly, Peace
Operations (Australian Government Publishing Service, Canberra, 1997), ch 6; John Dugard,
‘Bridging the gap between human rights and humanitarian law: The punishment of offenders’
(1998) 324 International Review of the Red Cross 445; Vera Gowlland-Debbas, ‘The Right to
Life and Genocide: The Court and an International Public Policy’ in Laurence Boisson de
Chazournes and Philippe Sands (eds), International Law, the International Court of Justice and
Nuclear Weapons (CUP, Cambridge, 1999) 315; Theodor Meron, ‘The Humanization of
Humanitarian Law’ (2000) 94 AJIL 239; Dale Stephens, ‘Human Rights and Armed Conflict—
The Advisory Opinion of the International Court of Justice in the Nuclear Weapons Case’ (2001)
Yale Human Rights and Development Law Journal 1; Adam Roberts, ‘The Laws of War in the
War on Terror’ (2003) 32 Israel Yearbook on Human Rights 193; Hans-Joachim Heintze, ‘The
European Court of Human Rights and the Implementation of Human Rights Standards During
Armed Conflicts’ (2005) 45 German Yearbook of International Law 60; Sub-Commission on the
Promotion and Protection of Human Rights, Administration of Justice, Rule of Law and
Democracy—Working paper on the relationship between human rights law and international
humanitarian law by Françoise Hampson and Ibrahim Salama, UN Doc E/CN.4/Sub.2/2005/14,
14 June 2005; Noam Lubell, ‘Challenges in applying human rights law to armed conflict’ (2005)
87 International Review of the Red Cross 737; William S Schabas, ‘Lex Specialis? Belt and
Suspenders? The Parallel Operation of Human Rights Law and the Law of Armed Conflict, and
the Conundrum of ius ad bellum’, paper presented at a conference on the parallel application of
international human rights law and international humanitarian law, Hebrew University, Jerusalem,
21–22 May 2006 (on file with author).
2 Legality of the Threat or Use of Nuclear Weapons (Request by the United Nations General
Assembly for an Advisory Opinion) [1996] ICJ Reports 226.
3 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory,
Advisory Opinion [2004] ICJ Reports 136.

[ICLQ vol 56, July 2007 pp 623–640] doi: 10.1093/iclq/lei185

624 International and Comparative Law Quarterly
As regards the relationship between international humanitarian law and human rights law,
there are thus three possible situations: some rights may be exclusively matters of interna-
tional humanitarian law; others may be exclusively matters of human rights law; yet others
may be matters of both these branches of international law. In order to answer the question
put to it, the Court will have to take into consideration both these branches of international
law, namely human rights law and, as lex specialis, international humanitarian law.4

At the end of 2005 the International Court of Justice confirmed and effectively illus-
trated this more sophisticated approach in its judgment in the Case Concerning Armed
Activities on the Territory of the Congo.5 The Court found, for example, that under the
customary rule on belligerent occupation reflected in Article 42 of The Hague
Regulations of 1907, Uganda was the occupying power in the Ituri region of the
Democratic Republic of the Congo from 1998 to 2003 and was, as a consequence,
under a legal duty in the occupied area:
to secure respect for the applicable rules of international human rights law and international
humanitarian law, to protect the inhabitants of the occupied territory against acts of
violence, and not to tolerate such violence by any third party.6

Uganda, through the conduct of its armed forces, was found by the Court to have
‘violated its obligations under international human rights law and international human-
itarian law’.7
Another important development regarding the relationship between IHL and IHRL
occurred in 2005. I refer here to the finalization of the study prepared under the
auspices of the International Committee of the Red Cross (‘ICRC’) on customary IHL.8
This significant work will, I believe, influence both the operation and development of
both IHL and IHRL.
There is one final development that I wish to note in this introduction which has
significance to the relationship between IHL and IHRL. In 2006 the International Law
Commission (‘ILC’) concluded an important study on the fragmentation of interna-
tional law.9 This study, which included a consideration of the lex specialis principle, as
well as other ‘tools’ in the ‘tool-box’10 of international lawyers that are available to
address apparent or actual conflicts between different rules and principles of interna-
tional law, also has much to offer those seeking a better understanding of the relation-
ship between IHL and IHRL.
This article will focus on the ILC fragmentation study and will use it to highlight
some important recent developments, including a number that arise out of the ICRC

4 ibid 136, 178, para 106.

5 Democratic Republic of the Congo v Uganda, International Court of Justice, Judgment 19
Dec 2005.
6 ibid, para 178.
7 ibid, para 3 dispositif.
8 Jean-Marie Henckaerts and Louise Doswald-Beck, Customary International Humanitarian
Law, Volume I, Rules (CUP, Cambridge, 2005). This publication is the result of a request by the
26th International Conference of the Red Cross and Red Crescent in 1995 to the International
Committee of the Red Cross to prepare a report on customary IHL applicable in international and
non-international armed conflicts—ibid, xxvii.
9 International Law Commission, 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, 13
Apr 2006.
10 ILC report refers to the ‘tool-box’ metaphor in a number of places. See, eg, International
Law Commission, Fragmentation of International Law, ibid 250.
 The Fragmentation of International Law 625
customary law study. The ICRC study is bound to make a positive contribution to
respect for IHL. It also has the potential to contribute to efforts to improve respect for
IHRL. This potential relates to the systemic integrity11 of the international legal
system, of which IHL and IHRL form part. Systemic integrity is a critical feature of the
ILC’s work on fragmentation of international law.

II. FRAGMENTATION OF INTERNATIONAL LAW AND IHL AND IHRL

At the risk of oversimplification I shall offer a brief summary of the ILC’s fragmenta-
tion study. The study grew out of various concerns related to the proliferation of inter-
national courts, tribunals and other institutions,12 and the associated risk of rules and
principles developed in particular areas of international law coming into conflict with
each other. The ILC began its work on the topic in 2002 and that work culminated with
the preparation of a detailed report of an ILC study group chaired by Martti
Koskenniemi that was considered and duly noted by the ILC on 9 August 2006.
As mentioned above, the ILC study considered the lex specialis principle and other
rules and principles that are relevant when addressing the potential for conflict between
substantive rules and principles of international law. The ILC Study Group decided to
leave to one side the institutional dimension of such conflicts (how, for example, differ-
ent international tribunals decide to institutionally manage potential conflicts).13
There were four focal points in the ILC’s study:

1. Relations between special and general norms of international law. This included the
operation of the lex specialis principle and ‘self contained regimes’ of international
law (to use the language of the International Court of Justice in the Teheran
Hostages Case).14 The ILC Study Group actually preferred the term ‘special’
regimes rather than ‘self-contained’ to underline that these regimes or ‘branches of
international law’ were all linked to general international law and were part of the
international legal system.15 The Study Group identified IHL and IHRL as special
regimes.
2. Prior and subsequent norms of international law. This included consideration of the
different interpretative principles that apply to support either an earlier or a later
legal obligation. The Study Group noted that contract law analogies might lead one
to prefer an earlier treaty obligation while analogies with statute law might lead one
to prefer obligations in a later treaty.16 The Study Group noted that temporal and
specificity factors might operate together in a particular dispute (in concert or in

11 See generally Campbell McLachlan, ‘The Principle of Systemic Integration and Article
31(3)(c) of the Vienna Convention’ (2005) 54 ICLQ 279.
12 The ILC gives the example of the Mox Plant dispute between Ireland and the UK—where
essentially the same dispute was raised via three different institutional procedures—International
Law Commission, Fragmentation of International Law, n 9 above, 12–13.
13 According to the Study Group the ‘issue of institutional competencies is best dealt with by
the institutions themselves’—International Law Commission, Fragmentation of International
Law, ibid 13.
14 Case Concerning the United States Diplomatic and Consular Staff in Tehran (United States
of America v Iran) [1980] ICJ Reports 41, para 86.
15 International Law Commission, Fragmentation of International Law, n 9 above, 82.
16 ibid 117.
626 International and Comparative Law Quarterly
opposition).17 The ILC’s consideration of ‘temporality’ included consideration of
inter se modification of treaties by agreement between a subset of treaty parties,18
which is the subject of regulation under Article 41 of the Vienna Convention on the
Law of Treaties 1969 (‘VCLT’).
3. Rules and principles of international law having different normative power. Here
the ILC Study Group considered peremptory norms of international law (jus
cogens), erga omnes obligations and the effect of Article 103 of the United Nations
Charter. Most significance in cases of potential conflict appears to have been placed
on peremptory norms and Article 103. Peremptory norms operate to invalidate
inconsistent norms. A number of human rights norms have been generally recog-
nised as peremptory.19 ‘[B]asic rules of international humanitarian law applicable in
armed conflict’20 have also been identified as peremptory. Article 103 of the
Charter is the conflict resolution provision that provides that ‘[i]n the event of a
conflict between the obligations of the Members of the United Nations under the
present Charter and their obligations under any other international agreement, their
obligations under the present Charter shall prevail’.
4. Systemic integration of international law, in particular through the operation of the
rule of interpretation contained in Article 31(3)(c) of the VCLT. According to this
article when interpreting a treaty the interpreter shall take ‘into account, together
with the context [of the treaty] . . . any relevant rules of international law applicable
in the relations between the parties’.

This fourth focal point in one sense links in closely with each of the other three. The
ILC report recognised that treaty interpretation was central to the identification of
whether there existed conflict between or involving treaty norms.21 The Study Group’s
general conclusions included the ‘principle of harmonization’:
It is a generally accepted principle that when several norms bear on a single issue they
should, to the extent possible, be interpreted so as to give rise to a single set of compatible
obligations.22

This principle, by referring to ‘a single issue’, appears to apply primarily to avoid

conflict between rules within the same legal regime.23

17 ibid 120–1.
18 ibid 151–66.
19 International Law Commission, Report on the work of its fifty-third session (23 Apr–1 June
and 2 July–10 Aug 2001), General Assembly Official Records, sixty-first session, Supplement No
10 (A/61/10), 208.
20 International Law Commission, Fragmentation of International Law, n 9 above, 189.
21 ibid 207.
22 International Law Commission, Report on the work of its fifty-eighth session (1 May–9 June
and 3 July–11 Aug 2006), General Assembly Official Records, fifty-fifth session, Supplement No
10 (A/56/10), 408.
23 cf Anja Lindroos, ‘Addressing Norm Conflicts in a Fragmented Legal System: The Doctrine
of Lex Specialis’ (2005) 74 Nordic Journal of International Law 27, who argues that: ‘lex specialis
is a suitable approach to the resolution of conflicts between treaties when a connection exists
between those treaties. Its application is not automatic and does not solve conflicts between two
special norms, however, especially if these derive from different normative orders. The maxim of
lex specialis does not provide any criteria to guide the decision whether one area of law is gener-
ally more important than another’—at 44.
 The Fragmentation of International Law 627
Paradoxically, the Study Group refused to adopt a narrow definition of conflict
between norms. Rather than restrict conflict or incompatibility to cases of logical
inability to comply with two competing obligations, the Study Group advocated a
broader conception of conflict that involved, in the case of treaties, an:
assessment of whether the fulfilment of the obligation under one treaty affects the fulfil-
ment of the obligation of another. This ‘affecting’ might then take place either as strictly
preventing the fulfilment of the other obligation or undermining its object and purpose in
one or another way.24

The Study Group’s reason for favouring such a broad conception of conflict appears to
be the desire to avoid broader systemic issues raised by clashes between legal regimes
being neglected through the operation of technical conflict avoidance rules (which
operate most straightforwardly in cases of intra-regime conflict). A central theme in
the Study Group’s report is that inter-regime conflicts should not be characterized as
legal-technical mistakes:
Normative conflicts do not arise as technical ‘mistakes’ that could be ‘avoided’ by a more
sophisticated way of legal reasoning.25

The Study Group identified the importance of coherence necessary for predictability
and legal security.26 But the Study Group also emphasised other issues. In its conclu-
sions on the principle of systemic integration the Study Group observed that:
[b]y making sure that the outcome [in an individual case of apparent conflict] is linked to
the legal environment, and that adjoining rules are considered—perhaps applied, perhaps
invalidated, perhaps momentarily set aside—any decision [applying the principle] also
articulates the legal-institutional environment in view of substantive preferences, distribu-
tionary choices and political objectives. This articulation is quite important in a decentral-
ized and spontaneous institutional world whose priorities and objectives are often poorly
expressed. It is also important for the critical and constructive development of international
institutions, especially institutions with law-applying tasks. To hold those institutions as
fully isolated from each other and as only paying attention to their own objectives and pref-
erences is to think of law only as an instrument for attaining regime-objectives. But law is
also about protecting rights and enforcing obligations, above all rights and obligations that
have a backing in something like a general, public interest. Without the principle of
‘systemic integration’ it would be impossible to give expression to and to keep alive, any
sense of the common good of humankind, not reducible to the good of any particular insti-
tution or ‘regime’. 27

I would like to make one final observation regarding the fragmentation report. The
ILC Study Group provided clear advice regarding inter-regime conflicts. The Study
Group was concerned about the dangers of having conflicts between different legal
regimes determined by a decision-maker situated within one of the competing
regimes. The Study Group referred to the importance of ensuring that the ‘law applier
is an impartial third party’,28 it encouraged the referral of such disputes to ‘general
dispute-settlement organs’29 and it referred to the need for ‘special attention [to] . . .

24 International Law Commission, Fragmentation of International Law, n 9 above, 130.

25 ibid, 245. See also Martti Koskenniemi and Päivi Leino, ‘Fragmentation of International
Law? Postmodern Anxieties’ (2002) 15 Leiden Journal of International Law 553, 561. It is of
course possible that intra-regime conflicts may involve ‘technical mistakes’.
26 ibid 249. 27 ibid 244.
28 ibid 142. 29 ibid 166.
628 International and Comparative Law Quarterly
be given to the independence of the means of settlement chosen’30 for conflicts
between regimes.

III. IHL AND IHRL—SPECIAL REGIMES

Much of the ILC’s fragmentation report is focused upon issues arising between quite
distinct legal regimes such as the international trade regime and the international envi-
ronmental protection regime. Such regimes differ not just in relation to the subject
matter of their respective norms,31 but also in the way the norms are expressed32 and
in the values that underlie each regime.33
IHL and IHRL appear much closer to each other. As already noted both regimes
contain peremptory norms. Both regimes have a protective purpose. IHRL seeks to
protect human dignity.34 IHL appears animated by the ‘principles of humanity’ and the
‘dictates of public conscience’ referred to in the Martens Clause, while the
International Court of Justice in the Corfu Channel Case referred to ‘elementary
considerations of humanity’.35 Both regimes contain obligations of an ‘absolute rather
than a reciprocal character’36 such that violation by one treaty party of its protective
obligations under an IHL or IHRL treaty does not allow another party to suspend its
protective obligations.37
Such closeness, however, does not mean that inter-regime conflict is less likely. On
the contrary, similarities between the regimes appear to ensure overlapping operation
and greater scope for conflict. The presence of emergency derogation clauses in human
rights treaties (and the express reference to ‘war’ in some human rights treaties)38
makes it impossible to avoid overlapping operation of IHL and IHRL.
Overlapping operation is also combined with certain significant differences
between the regimes. This increases dramatically the scope for misunderstanding and
inter-regime conflict. IHL is ‘based on the balance between military necessity and
humanity’.39 This aspect of IHL is perhaps the most difficult for human rights lawyers

30 International Law Commission, Report on the work of its fifty-eighth session (1 May–9 June
and 3 July–11 Aug 2006), General Assembly Official Records, fifty-fifth session, Supplement No
10 (A/56/10), 418.
31 Contrast the ‘most favoured nation’ rule with the precautionary principle.
32 Contrast the use of framework conventions in the environmental regime with the specific
tariff schedules in trade treaties.
33 Contrast the concept of comparative advantage with the concept of sustainable development.
34 See, eg, the references to human dignity in the Universal Declaration of Human Rights.
35 Case Concerning the Corfu Channel (Merits) [1949] ICJ Reports 4, 22.
36 Sir Gerald Fitzmaurice, Law of Treaties, Second report by G Fitzmaurice, Special
Rapporteur [1957] Yearbook of the International Law Commission, Volume II, 16, at 54. Note
also Art 60(5) of VCLT that embodies this concept. For a detailed discussion of the distinction
between reciprocal obligations on the one hand and integral and interdependent obligations on the
other, see Joost Pauwelyn, ‘A Typology of Multilateral Treaty Obligations: Are WTO Obligations
Bilateral or Collective in Nature?’ (2003) 14 European Journal of International Law 907.
37 See, eg, the decision of the International Criminal Tribunal for the former Yugoslavia in
Prosecutor v Kupreskic, Case No It-95-16-T, Trial Chamber, Judgment, 14 Jan 2000, paras
515–20. Cf René Provost, ‘Reciprocity in Human Rights and Humanitarian Law’ (1994) 65 BYIL
383 who argues that IHL still appears to contain areas where reciprocity remains significant.
38 See Arts 2 and 15 of the European Convention on Human Rights and Art 27 of the American
Convention on Human Rights.
39 Doswald-Beck and Vité, n 1 above, 98.
 The Fragmentation of International Law 629
to understand and accept. Yet it appears critical to the efficacy of the protection
provided by the IHL regime because it removes a significant incentive for non-compli-
ance. The rules of IHL have been
fashioned in a manner that will not undermine the ability of the army in question to win the
war. Thus in order to cease respecting the law an army cannot, for example, invoke the fact
that it is losing for such violation of the law will not be of sufficient genuine military help
to reverse the situation.40

IHL lawyers also apparently ‘fear that the politicization associated with human rights
work will compromise the neutral and purely humanitarian nature of their work’.41 The
alleged inability of IHRL to keep separate the jus ad bellum and the jus in bello is yet
another concern offered by practitioners of IHL.42
Human rights lawyers on the other hand might be inclined to adapt the words of
Professor Gowlland-Debbas who, in a different context, referred to the ‘law regulating
the conduct of hostilities’ as entailing ‘a grim ‘balancing’, or ‘equation’ between mili-
tary necessity and human suffering, shrouded in euphemisms such as collateral
damage’.43 Human rights lawyers have also expressed concerns about the role of mili-
tary commanders in making proportionality assessments regarding incidental loss of
civilian lives.44 Limitation and derogation clauses in IHRL treaties reduce the scope for
apparent conflict in this context, as does the wide margin of appreciation applied by the
European Court of Human Rights in cases of emergency derogations,45 but significant
differences between the regimes nonetheless remain.
What might one draw from the ILC fragmentation report regarding these issues?
First, the presence of peremptory norms in both IHL and IHRL means that one tool
available to address apparent conflict theoretically raises difficulties not often experi-
enced in other cases of inter-regime conflict. Such difficulties are in addition to the
more commonly noted difficulties associated with peremptory norms.46 Whilst there is
consensus regarding the existence of certain peremptory norms in IHL and IHRL, there
remains controversy regarding the precise content of particular peremptory norms. As
demonstrated by decisions of the International Court of Justice47 and the European

40 ibid 101.
41 David Petrasek, ‘Current Developments—Moving Forward on the Development of
Minimum Humanitarian Standards’ (1998) 92 AJIL 557, at 560; see also Draper, n 1 above, 195.
42 Schabas, n 1 above, 17. On the importance of the distinction between jus ad bellum and jus
in bello see Christopher Greenwood, ‘The relationship between ius ad bellum and ius in bello’
(1983) 9 Review of International Studies 221. Draper makes the following assertions in relation
to efforts to link human rights and humanitarian law in the 1960s and 1970s: ‘The attempt to
confuse the two regimes of law is insupportable in theory and inadequate in practice. The two
regimes are not only distinct but are diametrically opposed. The confusion between the two was
a heresy of the UN, brought about by political forces which achieved their purpose by the inclu-
sion of struggles for self-determination within the law applicable to international armed
conflicts’—Draper op cit 205. For criticism of Draper’s views see Stephens, n 1 above 9–14.
43 Gowlland-Debbas, n 1 above, 335.
44 Doswald-Beck and Vité, n 1 above, 109.
45 For a critique of the margin of appreciation jurisprudence from a human rights perspective,
see Susan Marks, ‘Civil Liberties at the Margin: the UK Derogation and the European Court of
Human Rights’ (1995) 15 OJLS 69.
46 See, eg, Dinah Shelton, ‘Normative Hierarchy in International Law’ (2006) 100 AJIL 291,
297–319.
47 Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo
v Belgium) [2002] ICJ Reports 3.
630 International and Comparative Law Quarterly
Court of Human Rights,48 the existence of a peremptory prohibition of torture does not
necessarily translate into the trumping of other non-peremptory rules of international
law.49
Additionally, in relation to IHL and IHRL, it is impossible to exclude the theoreti-
cal possibility of a conflict between peremptory norms. I would like to stress this is
probably only a theoretical possibility. I am unable to think of a realistic illustration of
such a difficulty in the relationship between IHL and IHRL. The point I would like to
make though is that according to the ILC Study Group, if this problem were ever to
arise, the legal rules for conflict resolution identified by the Study Group would appear
to offer little by way of assistance. According to the Study Group:
it cannot be presumed that the doctrine of jus cogens could itself resolve such conflicts:
there is no hierarchy between jus cogens norms inter se.50

Turning to a second general observation regarding the relationship of IHL and IHRL
in light of the ILC’s report. One consequence, according to the ILC Study Group, that
flows from the characterization of IHL and IHRL as distinct special regimes is that
technical conflict rules, such as lex specialis and lex posterior must be applied with
greater care.51 For example, simply because IHL treaty provisions are often drafted in

48 Al-Adsani v UK (2001) 34 EHRR 273. See also the discussion of two other decisions of the
European Court of Human Rights (in the Fogarty and McElhinney decisions) in McLachlan, n 11
above, 304–6.
49 For an analysis of recent decisions on immunity in civil proceedings before national courts
see Kate Parlett, ‘Immunity in Civil Proceedings for Torture: The Emerging Exception’ [2006]
European Human Rights Law Review 49.
50 International Law Commission, Fragmentation of International Law, n 9 above, 185. Cf the
observation of the International Criminal Tribunal for the former Yugoslavia ‘that there is in law
no distinction between the seriousness of a crime against humanity and that of a war crime’—
Prosecutor v Tadic, Judgment in Sentencing Appeals, Case No IT-94-1-A and IT-94-1-Abis, 26
Jan 2000, para 69.
51 Despite being emphasized in the report (see, eg, p 130 of the ILC report, ibid) and despite
acknowledging problems with the way in which the lex specialis principle was utilized in the
Nuclear Weapons Advisory Opinion (see the ILC’s reference to the perceptive criticism by
Professor Gowlland-Debbas’ in n 129 of the fragmentation report) the Study Group did appear to
offer the following defence of the application of the principle: ‘The example of the laws of war
focuses on a case where the rule itself identifies the conditions in which it is to apply, namely the
presence of an “armed conflict”. Owing to that condition, the rule appears more “special” than if
no such condition had been identified. To regard this as a situation of lex specialis draws atten-
tion to an important aspect of the operation of the principle. Even as it works so as to justify
recourse to an exception, what is being set aside does not vanish altogether. . . . The Court was
careful to point out that human rights law continued to apply within armed conflict. The excep-
tion—humanitarian law—only affected one (albeit important) aspect of it, namely the relative
assessment of “arbitrariness”. Humanitarian law as lex specialis did not suggest that human rights
were abolished in war. It did not function in a formal or absolute way but as an aspect of the prag-
matics of the Court’s reasoning. However desirable it might be to discard the difference between
peace and armed conflict, the exception that war continues to be to the normality of peace could
not be simply overlooked when determining what standards should be used to judge behaviour in
those (exceptional) circumstances. Legality of Nuclear Weapons was a “hard case” to the extent
that a choice had to be made by the Court between different sets of rules none of which could fully
extinguish the others. Lex specialis did hardly more than indicate that though it might have been
desirable to apply only human rights, such a solution would have been too idealistic, bearing in
mind the speciality and persistence of armed conflict. So the Court created a systemic view of the
law in which the two sets of rules related to each other as today’s reality and tomorrow’s promise,
with a view to the overriding need to ensure “the survival of a State”’—ibid 57.
 The Fragmentation of International Law 631
much more detail than IHRL52 is not alone a sufficient reason to justify giving IHL
priority in every case of conflict. The underlying purposes and principles of each
regime need to be openly considered specifically in each case of conflict. Systemic
integrity also needs to be considered. Both IHL and IHRL are part of international law
and they need to be construed in a manner that does not undermine that integrity.
The strong differences in view amongst those within the IHL and IHRL regimes
also suggests that independent, third party (ie external to both regimes) adjudication of
inter-regime conflicts is important. Mutual misunderstandings are also accompanied by
questions and concerns regarding levels of expertise. Concerns, for example, have been
expressed regarding the level of expertise amongst IHRL experts in relation to IHL.53
From the other side, one observation regarding IHRL in the ICRC customary law study
has been described by one distinguished human rights lawyer as mysterious!54
Notwithstanding some serious teething problems55 the International Criminal Court
has at least the potential to provide such independent third party adjudication. The
jurisdiction of the court has a type of IHL/IHRL symmetry.56 On the IHL side, the
court’s jurisdiction extends to war crimes in international and internal armed conflicts
and crimes against humanity and genocide committed during armed conflict. On the
IHRL side, both genocide and crimes against humanity do not depend on the existence
of an armed conflict. Crimes against humanity can reasonably be seen as criminal
responsibility for systematic and widespread violations of human rights.57 The

52 Doswald-Beck and Vité, n 1 above, 101.

53 Lubell, n 1 above, 743; Sub-Commission on the Promotion and Protection of Human Rights,
n 1 above, 4.
54 Andrew Clapham, Human Rights Obligations of Non-State Actors (OUP, Oxford, 2006) 14.
In a footnote Professor Clapham refers to the ICRC customary law study and then makes the
following observation: ‘The [ICRC] study mysteriously asserts that the ‘majority view’ is that
international human rights law (in contrast to international humanitarian law) only binds govern-
ments and not armed opposition groups (at 299 [of the ICRC study]). For those who do not accept
this apparent limitation on human rights law, the set of customary rules will provide a useful
normative framework for holding non-state actors accountable in times of armed conflict for
violations of international human rights law.’
55 There has, apparently, been a high turnover of personnel at the Court.
56 cf Dugard, n 1 above; and Meron, n 1 above, 253 and 263–6.
57 Sir Hersch Lauterpacht observed in 1950 that ‘the Charter and the judgment of the
[Nuremburg] Tribunal, in so far as they recognise in principle crimes against humanity, have a
direct bearing on the question of recognition, in the international sphere, of fundamental rights of
the individual. Crimes against humanity are crimes regardless of whether they were committed in
accordance with and in obedience to the national law of the accused. Such acts were deemed to
violate the sanctity of human personality to such a degree as to make irrelevant reliance upon the
law of the State which ordered them. To lay down that crimes against humanity are punishable is,
therefore, to assert the existence of rights of man grounded in a law superior to the law of the
State. Thus, upon analysis, the enactment of crimes against humanity in an international instru-
ment signifies the acknowledgement of fundamental rights of the individual recognised by inter-
national law. . . . In terms of law, with the conception of crimes against humanity there must
correspond the notion of fundamental human rights recognised by international law and, as a
further result, of an international status of the individual whose rights have thus been recog-
nised’—Lauterpacht, International Law and Human Rights (Stevens and Sons Ltd, London, 1950)
36–7. The prohibitions of slavery and racial and gender discrimination (human rights standards
directed at non-state entities) and the development of international criminal responsibility for indi-
viduals, particularly individual criminal responsibility for crimes against humanity committed in
the absence of armed conflict and in furtherance of the policy of non-State entities, makes the a
priorism apparent in the observations of the authors of the ICRC customary law study referred to
632 International and Comparative Law Quarterly
extended definition of crimes against humanity in the International Criminal Court’s
Statute makes the human rights link stronger than it was when the ILC formally recog-
nised the link during the drafting of the Draft Code of Crimes Against the Peace and
Security of Mankind in the 1990s.58
One final set of general observations. The ILC study accepts the need for separate
special regimes. The ILC Study Group also appears to accept that there will be complex
relationships within and between regimes. This appears to be an inevitable conse-
quence of the processes and pervasiveness of globalization. There is always a need for
vigilance in relation to systemic integrity, but provided that such integrity is preserved,
complex rules pulling in different directions can co-exist without undermining the
system. On this point I find myself disagreeing with one aspect of the ILC Study
Group’s report. Commenting on World Trade Organization (‘WTO’) jurisprudence on
the relevance of a later multilateral treaty to the interpretation of an earlier multilateral
treaty, the ILC Study Group effectively criticises the approach taken in the WTO that
the later treaty is not directly59 relevant to the interpretation of the earlier treaty unless
the parties to both the treaties are the same.60 As the ILC Study Group points out, the
chances of the parties being the same grow less the more parties there are to the two
multilateral treaties. The ILC Study Group acknowledges that general customary law
pulls in the direction of systemic integrity (discussed further below) but implies that the
WTO approach increases the risk of conflicts between treaties.61 It is submitted,
however, that the Study Group’s alternative proposal (ie to treat a later multilateral
treaty as relevant in the interpretation of an earlier treaty even though the parties are
not the same) runs the risk of undermining the integrity of the earlier treaty. Such an
interpretation of Article 31(3)(c) is difficult to reconcile with the rules on inter se modi-
fication of treaties in Article 41 of the VCLT, which includes its own specific safe-
guards to preserve the integrity of the treaty that States propose to modify.62 The

in n 54 above in relation to obligations to respect human under general international law unten-
able today whatever support it may have had in the past.
58 The link between crimes against humanity and violations of human rights protected under
international law is apparent in the work of the International Law Commission. In 1991 the
Commission provisionally adopted the ‘draft Code of Crimes against the Peace and Security of
Mankind’ which dealt with crimes under international law for which there could be individual
responsibility. Art 21 of this draft was entitled ‘[s]ystematic or mass violations of human rights.’
Art 21 was subsequently redrafted and retitled ‘crimes against humanity’. The redrafted Art was
adopted by the Commission in 1996 as Art 18 of the draft code. The terms of Art 18, however,
remained similar to those of Art 21 of the 1991 draft.
59 It may, however, be indirectly relevant, see Joost Pauwelyn, Conflict of Norms of Public
International Law: How WTO Law Relates to other Rules of International Law (CUP, Cambridge,
2003), 456–86.
60 International Law Commission, Fragmentation of International Law, n 9 above, 237–9. See
generally Pauwelyn, op cit 237–74; cf McLachlan, n 11 above, 313–15.
61 International Law Commission, Fragmentation of International Law, n 9 above, 237–8.
62 Art 41 of the VCLT (‘Agreements to modify multilateral treaties between certain of the parties
only’) includes requirements that the modification not be inconsistent with the terms of the treaty
(expressly or impliedly), that the modification not affect the rights or obligations of other parties to the
treaty and that the modification not be incompatible ‘with the effective execution of the object and
purpose of the treaty as a whole’—Art 41(1)(b)(ii). If the proposed modification satisfies these require-
ments then Art 41 also requires those parties intending to modify the treaty to notify other parties of
their intention to modify the treaty to provide details of the proposed modification. These notification
requirements are similar to those that apply in relation to amendment (VCLT Article 40), suspension
of treaties (Art 58) and reservations proposed by States seeking to become parties to treaties (Art 23).
 The Fragmentation of International Law 633
benefit of such safeguards would potentially be lost if the Study Group’s suggested
interpretation of Article 31(3)(c) were accepted. The legal process of ‘interpretation’ of
a multilateral treaty63 appears inconsistent with the possible, and in many cases prob-
able, interpretative outcomes that will flow from the Study Group’s proposal,64 namely
that a multilateral treaty will be given different interpretations for different parties to
the treaty. Such an outcome appears contrary to views expressed within the
International Law Commission at the time of drafting of the VCLT and the plain
language of the VCLT.65
How does this impact on the relationship between IHL and IHRL treaties? What the
WTO approach means is that a treaty interpreter is required to be more tolerant of
treaty rules pulling in different directions. If Russia, for example, chooses to be a party
to the European Convention on Human Rights and thereby subjects itself to higher
protective standards than those that would apply under common Article 3 of the
Geneva Conventions and Additional Protocol II so far as they might apply to the
conflict in Chechnya then that is Russia’s prerogative.66 It is not destructive of IHL
provided that the European Court of Human Rights makes it clear that it is applying
human rights law and not IHL. Customary IHL will also be relevant in the interpreta-
tion of the IHRL treaty obligations. But the common humanitarian foundations of IHL
and IHRL might allow us to avoid a finding of normative conflict between IHL and
IHRL treaties, even applying the broader conception of conflict favoured by the ILC
Study Group.67

IV. ROLE OF CUSTOMARY INTERNATIONAL LAW IN THE RELATIONSHIP

BETWEEN IHL AND IHRL

Reference has already been made to the rule of treaty interpretation in Article 31(3)(c)
of the VCLT and the important role it plays in promoting systemic integration in inter-
national law. In his foreword to the 2005 ICRC customary IHL study, the President of
the ICRC, Dr Jakob Kellenberger expressly recognised in relation to the study that
‘customary international law can help in the interpretation of treaty law’.68 This means
effectively that for those IHL treaty provisions that are ‘by definition evolutionary’ in
the sense that that phrase was used by the International Court of Justice in the Namibia

63 ‘Article 31 [of the VCLT] is concerned with the promulgation of a general rule, which
would apply to the interpretation of a treaty irrespective of whether any particular parties to it may
happen to be in dispute’—McLachlan, n 11 above, 315.
64 Outcomes which the ILC Study Group expressly acknowledges as possible—International
Law Commission, Fragmentation of International Law, n 9 above, 238.
65 See Pauwelyn, n 59 above, 237–74. Cf McLachlan, n 11 above, 314–15.
66 See, eg, Isayeva v Russia, Application No 57950/00, 24 Feb 2005. Commentary on this case
has contrasted similarities and differences in the way IHL and IHRL would have dealt with the
facts of this case. See, eg, Schabas, n 1 above, 11–12. See also Isayeva, Yusupova and Bazayeva
v Russia, Applications Nos 57947/00, 57948/00, and 57949/00, 24 Feb 2005. It is important to
note (as emphasized by the European Court of Human Rights in both cases) that Russia had not
formally sought to rely on emergency derogations under Art 15 of the European Convention on
Human Rights.
67 It should also be noted that in relation to this issue the ILC study expressly accepted that the
approach they advocated regarding later treaties would not apply in the case of absolute non-reci-
procal obligations—International Law Commission, Fragmentation of International Law, n 9
above, 238–9.
68 Henckaerts and Doswald-Beck, n 8 above, x.
634 International and Comparative Law Quarterly
Advisory Opinion69 (as humanitarian obligations appear to be) the ICRC customary
study will be relevant when those provisions are being interpreted and it will not matter
that the treaty pre-dates the development of the relevant customary rule.
But the significance of the ICRC study extends further than this. As already
suggested above it is not just IHL treaties that will need to be read in light of custom-
ary IHL obligations. Human rights treaties are to be interpreted as part of the interna-
tional legal system and thus developments in customary IHL must also be taken
account of in the interpretation of IHRL treaties. Article 31(3)(c) of the VCLT attempts
to achieve systemic integration precisely by linking different international legal
regimes together. Even trade law treaties may be influenced by the ICRC customary
law study.
The ICRC study does recognise specific areas of overlap between IHL and IHRL.
According to the authors of the study, while IHL and IHRL remain ‘separate branches
of international law’ they have ‘directly influenced’ each other in the past and continue
to do so for three main reasons:
First, an assessment of conformity with human rights law at times involves a determination
of respect for or breach of international humanitarian law. For example, measures taken in
states of emergency will be unlawful under human rights law if, inter alia, they violate
international humanitarian law. . . Conversely, international humanitarian law contains
concepts the interpretation of which needs to include a reference to human rights law, for
example, the provision that no one may be convicted of a crime other than by a ‘regularly
constituted court affording all the judicial guarantees which are recognised as indispens-
able’. . . Secondly, human rights-type provisions are to be found in international humani-
tarian law, for example, Article 75 of Additional Protocol I and Articles 4 and 6 of
Additional Protocol II, and humanitarian law-type provisions are to be found in human
rights law, for example, the provisions on child soldiers in the Convention on the Rights of
the Child and its Protocol on the Involvement of Children in Armed Conflict. Thirdly, and
most significantly, there is extensive practice by States and by international organisations
commenting on the behaviour of States during armed conflict in the light of human rights
law.’70

There is however one implication of Article 31(3)(c) of the VCLT and the commitment
to systemic integration that is not recognised in the ICRC study, albeit for entirely
understandable reasons. The authors of the study acknowledge that the study ‘does not
purport . . . to provide an assessment of customary human rights law. Instead, human
rights law has been included in order to support, strengthen and clarify analogous prin-
ciples of international humanitarian law.’71 This is entirely reasonable and completely
understandable—an attempt to also codify customary international human rights law
would have added at least another 10 years to the ICRC study’s duration. The point
remains, however, that what Article 31(3)(c) of the VCLT requires when interpreting
an IHL treaty is the consideration of other relevant rules of customary international
law, in particular, it is submitted, customary human rights obligations.72 The ICRC

69 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South
West Africa) Notwithstanding Security Council Resolution 276, [1971] ICJ Reports 16.
70 Henckaerts and Doswald-Beck, n 8 above, xxxi.
71 ibid, xxxi.
72 cf Provost, n 37 above, 423–7. Art 31(3)(c) of the VCLT also requires consideration of
‘general principles of law’ [in the sense of Art 38(1)(c) of the Statute of the International Court of
Justice], see, eg, McLachlan, n 11 above, 290. It is also possible that human rights (and IHL)
obligations under general international law derive from such ‘general principles of law’–see, eg,
Bruno Simma and Philip Alston, ‘The Sources of Human Rights Law: Custom, Jus Cogens, and
 The Fragmentation of International Law 635
study has effectively set a new benchmark in customary international law scholarship
and the effectiveness of both IHL and IHRL would be enhanced by a comparable paral-
lel study of customary international human rights obligations.
There are two other issues associated with the need for a comparable study of
customary human rights obligations I would like to address. The first relates to the
issue of the territorial scope of IHRL treaties, in particular in relation to military oper-
ations by States party to human rights treaties where the military operations occur
outside of national territory. The issues have been the subject of consideration by
human rights bodies and academic commentators. The approach adopted by the
European Court of Human Rights, for example, in the Bankovic case,73 appears to be
narrower to the approach taken by the Human Rights Committee under the ICCPR.74
In the Case Concerning Armed Activities on the Territory of the Congo the
International Court of Justice only effectively addressed IHRL treaty obligations and
followed its approach in the Wall Advisory Opinion.75 This was despite the fact that
Congo framed its human rights claims under both treaty and customary international
law.76 As the International Court of Justice appeared to recognize in the Case
Concerning Application of the Convention on the Prevention and Punishment of the
Crime of Genocide77 the customary prohibition of genocide is not subject to any terri-
torial limitation. A moment’s reflection should lead any international lawyer to
conclude that this must be true for most if not all customary human rights obligations.78
A second issue relates to what I consider to be a rather surprising79 decision of the
English Court of Appeal in 2006 in R (on the application of Hilal Abdul-Razzaq Ali Al-
Jedda) v Secretary of State for Defence.80 An appeal to the House of Lords is currently
pending. The applicant for review in this case is a dual British and Iraqi national who

General Principles (1988–9) 12 Australian Yearbook of International Law 82, 105–6; and Judge
Tanaka’s dissent in South West Africa, Second Phase, [1966] ICJ Reports, 4, 298. I am indebted
to one of the anonymous referees for drawing this point to my attention. For discussion of contro-
versies surrounding the existence and content of customary human rights obligations see, eg,
Simma and Alston, op cit 85 and 88–100; and Hilary Charlesworth and Christine Chinkin, The
Boundaries of International Law – A Feminist Analysis (MUP, Manchester, 2000) 70–7.
73 Banković v Belgium, admissibility decision, Application No 52207/99, 19 Dec 2001, paras
59–82. Contrast the decision of the European Court of Human Rights in Issa and others v Turkey,
merits decision, Application 31821/96, 16 Nov 2004, para 71.
74 David Kretzmer, ‘Targeted Killing of Suspected Terrorists: Extra-Judicial Executions or
Legitimate Means of Defence?’ (2005) 16 European Journal of International Law 171, 184.
75 For a discussion of difficulties in the Court’s approach in the Wall Advisory Opinion see
Michael J Dennis, ‘Application of Human Rights Treaties Extraterritorially in Times of Armed
Conflict and Military Occupation’ (2005) 99 AJIL 119; cf Manfred Nowak, UN Covenant on Civil
and Political Rights—CCPR Commentary (2nd edn, NP Engel, Kehl, 2005) 43–4.
76 Democratic Republic of the Congo v Uganda, International Court of Justice, Judgment 19
Dec 2005, para 24.
77 Case Concerning Application of the Convention on the Prevention and Punishment of the
Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia) (Provisional Measures) [1996] ICJ
Reports 595, 615–16, para 31.
78 See, eg, Kretzmer, n 74 above, 185.
79 cf the description by Moses J at first instance of the Government’s key submission as ‘star-
tling’—R (on the application of Hilal Abdul-Razzaq Ali Al-Jedda) v Secretary of State for Defence
[2005] EWHC 1809 (Admin), para 34.
80 [2006] EWCA Civ 327, 29 Mar 2006. Noted by Penelope Nevill, ‘Case and Comment—
Qualifying the Human Rights Act: Detention under Security Council Resolutions’ [2006] CLJ
476.
636 International and Comparative Law Quarterly
was, and presumably still is, being detained by British forces in Iraq on account of
security concerns related to the applicant’s alleged support for the Iraqi insurgency.
The surprising aspect, in my view, of the Court of Appeal’s dismissal of a challenge to
the legality of the applicant’s continuing detention under the UK Human Rights Act
was the Court’s acceptance of the UK Government’s argument that an indirect refer-
ence in a Security Council resolution, adopted under Chapter VII of the Charter, to the
need to operate a system of internment in Iraq in order to respond effectively to the
security threats in Iraq,81 operated under Article 103 of the Charter to prevail over the
UK’s obligations under the European Convention on Human Rights.
In relation to the ILC’s fragmentation study what stands out from the Court of
Appeal’s judgment is the apparent absence of an acknowledgement of any requirement
to consider systemic integrity in the interpretation of the resolution, beyond considera-
tion of possible conflict with peremptory norms. This is all the more surprising because
on its face Article 103 of the Charter does not address customary obligations. Whilst
subsequent practice under the Charter appears to confirm that Article 103 does operate
to allow a Security Council resolution to prevail over conflicting customary interna-
tional law,82 to interpret the resolution without reference to the relevant rules of
customary international law (including customary IHL obligations) appears inconsis-
tent with the applicable rules of interpretation.83 The ILC’s ‘principle of harmoniza-
tion’ referred to above appears to be potentially relevant.
It is submitted that the Court of Appeal should have considered in greater detail the
relevant rules of interpretation under international law applicable to the interpretation
of Security Council resolutions. A rule analogous to Article 31(3)(c) of the VCLT

81 The Court of Appeal appears to have based its decision on Security Council Resolution 1546
(2004), adopted on 8 June 2004. Para 10 of this resolution refers to the following Security Council
decision: ‘that the multinational force shall have all the authority to take all necessary measures
to contribute to the maintenance of security and stability in Iraq in accordance with the letters
annexed to this resolution expressing, inter alia, the Iraqi request for the continued presence of the
multinational force and setting out its tasks, including by preventing and deterring terrorism, so
that, inter alia, the United Nations can fulfil its role in assisting the Iraqi people … and the Iraqi
people can implement freely and without intimidation the timetable and programme for the polit-
ical process and benefit from reconstruction and rehabilitation activities.’
Two letters were annexed to the resolution. The relevant part of the of the annexed letter from
the US Secretary of State provided: ‘Under the agreed arrangement, the [Multinational Force] …
stands ready to continue to undertake a broad range of tasks to contribute to the maintenance of
security and to ensure force protection. These include activities necessary to counter ongoing
security threats posed by forces seeking to influence Iraq’s political future through violence. This
will include . . . internment where this is necessary for imperative reasons of security in Iraq. . . .
[T]he forces that make up the [Multinational Force] . . . are and will remain committed at all times
to act consistently with their obligations under the law of armed conflict, including the Geneva
Conventions’—emphasis added by the Court of Appeal. This authorization was reaffirmed in
Security Council Resolutions 1637 (2005) and 1723 (2006).
82 International Law Commission, Fragmentation of International Law, n 9 above, 176. For a
contrary view see Alexander Orakhelashvili, ‘The Impact of Peremptory Norms on the
Interpretation and Application of United Nations Security Council Resolutions’ (2005) 16
European Journal of International Law 59, 69 (and other authors cited there).
83 A Security Council resolution is not a treaty but does appear to be subject to analogous rules
of interpretation—see, eg, the approach to the interpretation of resolutions in Legal Consequences
for States of the Continued Presence of South Africa in Namibia (South West Africa)
Notwithstanding Security Council Resolution 276 [1971] ICJ Reports 16, 53, para 114. On the
relationship between treaties and subsequent developments in customary international law, see,
eg, Pauwelyn, n 59 above, 137–43.
 The Fragmentation of International Law 637
appeared applicable in this case.84 Whilst on the approach advocated above85 [and
applying a rule analogous to that found in Article 31(3)(c)] the European Convention
on Human Rights would not be directly relevant to the interpretation of the resolution,
customary IHRL and customary IHL obligations would be relevant and ought to have
been considered.86 This process of interpretation is distinct from any form of challenge
regarding the validity of the resolution.87 The Court of Appeal made reference, inter
alia, to European Court of Justice jurisprudence in support of its conclusions.88 The
specificity of the resolutions considered in those cases89 stands in sharp contrast to the
general language of the resolutions in Al-Jedda.90 This difference at once reduced the
interpretative role of the European Court of Justice and highlighted the important inter-
pretative questions that the English Court of Appeal did not adequately address.

84 See generally Michael C Wood, ‘The Interpretation of Security Council Resolutions’ (1998)
2 Max Planck Yearbook of United Nations Law 73, in particular 92–3. Cf the application of a
similar principle to an instrument created unilaterally by a State in the Case concerning right of
passage over Indian territory (Preliminary Objections), Judgment of 26 Nov 1957, ICJ Reports
1957, 125, 142: ‘[i]t is a rule of interpretation that a text emanating from a Government must, in
principle, be interpreted as producing and as intended to produce effects in accordance with exist-
ing law and not in violation of it.’
It is submitted that even though resolutions adopted under Chapter VII of the Charter are regu-
larly intended to prevail over particular treaty obligations, the interpretative principle referred to
above is nonetheless applicable in order to ensure the systemic integrity of international law. Thus
resolutions authorising in broad terms the use of force under Chapter VII of the Charter [consider,
for example, the resolution 1264 (1999) that authorised the intervention force for East Timor to
use ‘all necessary measures’ to fulfil its mandate] ought not to be construed and have not been
construed as prevailing over and excluding obligations under IHL.
85 See the text accompanying n 59 above.
86 In particular the words ‘internment . . . necessary for imperative reasons of security’ ought
to have been construed in light of the relevant rules of customary international law applicable
given the changing nature and scale of the conflict in Iraq. Having considered the general inter-
national law relevant to the interpretation of the resolutions the Court would have been better
placed to then assess the extent to which obligations under the European Convention on Human
Rights continued to apply notwithstanding the relevant resolutions.
87 Whilst noting the existence of academic authority supporting such challenges the Court of
Appeal considered that a municipal court should not ‘entertain’ such arguments—[2006] EWCA
Civ 327, 29 Mar 2006, para 75. Professor Karl Zemanek has argued, for example, that ‘[t]he
Security Council is . . . bound by the norms of jus cogens in the same manner as the States
composing it, and its decisions are null and void if they conflict with a peremptory norm. It is
equally inconceivable that a decision by the Security Council, invoking the duty under Article 25
of the Charter, should oblige members of the United Nations to violate their obligations under
human rights conventions’—K Zemanek, ‘General Course on Public International Law: The
Legal Foundations of the International System’ (1997) 266 Recueil des Cours 9, 231.
88 [2006] EWCA Civ 327, para 64. In particular reference was made to the decision of the
Court of First Instance of the European Court of Justice in Yassin Abdullah Kadi v Council of the
European Union, Case T-301/01, 21 Sept 2005. Also relevant in that regard are two other deci-
sions of the Court of First Instance—Ahmed Ali Yusuf and Al Barakaat International Foundation
v Council of the European Union, Case T-306/01, 21 Sept 2005; and Chafiq Ayadi v Council of
the European Union, Case T-253/02, 12 July 2006. All three of these decisions are currently under
appeal.
89 According to the Court of First Instance in Kadi the relevant Security Council resolutions in
that case contained ‘clear, precise and detailed definitions and obligations that [left] . . . scarcely
any room for differing interpretation’—Case T-301/01, 21 Sept 2005, para 113. The same point
is made by the Court of First Instance in the Yusuf case, Case T-306/01, 21 Sept 2005, para 149.
90 See n 81 above.
638 International and Comparative Law Quarterly

V. CONCLUSIONS

In its ‘General Conclusions’ section the ILC Study Group makes the following admis-
sion:

This study has not aimed to set up definite relationships of priority between international
law’s different rules or rule-systems. To that extent, its results may seem unsatisfactory or
at least inconclusive.91

I must confess that at times as I read the fragmentation report it did occur to me that if
the ILC study was designed to establish a ‘tool-box’ to address fragmentation issues,
then many of the tools within the box were either blunt or otherwise not particularly
useful.
On further reflection, however, I think that such an assessment is unfair. The frag-
mentation report highlights the dilemma, ultimately a political dilemma, faced by all
legal systems, national or international. What one considers to be good law can always
be changed, sometimes for the worse, by those possessing the power to effect legal
change. The fragmentation study demands openness when such change is occurring.
By exposing the purposive, systemic, and coherence related issues the ILC Study
Group effectively identifies legal obstacles to the removal of protections offered by
both IHL and IHRL.
Judge Simma in his separate opinion in the Case Concerning Armed Activities on
the Territory of the Congo was plainly concerned about the possible betrayal of funda-
mental values that animate both IHL and IHRL. He concluded his separate opinion
with the following comments:
Let me conclude with a more general observation on the community interest underlying
international humanitarian and human rights law. I feel compelled to do so because of the
notable hesitation and weakness with which such community interest is currently mani-
festing itself vis-à-vis the ongoing attempts to dismantle important elements of these
branches of international law in the proclaimed ‘war’ on international terrorism.
As against such undue restraint it is to be remembered that at least the core of the oblig-
ations deriving from the rules of international humanitarian and human rights law are valid
erga omnes. . . As the Court indicated in the Barcelona Traction case, obligations erga
omnes are by their very nature ‘the concern of all States’ and, ‘[i]n view of the importance
of the rights involved, all States can be held to have a legal interest in their protection’. . .
In the same vein, the International Law Commission has stated in the Commentaries to its
Articles on the Responsibility of States for Internationally Wrongful Acts, that there are
certain rights in the protection of which, by reason of their importance, ‘all States have a
legal interest . . .’
If the international community allowed such interest to erode in the face not only of
violations of obligations erga omnes but of outright attempts to do away with these funda-
mental duties, and in their place to open black holes in the law in which human beings may
be disappeared and deprived of any legal protection whatsoever for indefinite periods of
time, then international law, for me, would become much less worthwhile.92

The ICRC customary law study and the ILC’s work on fragmentation of international
law allow for a significant reduction in the legal uncertainty regarding exactly what is

91 International Law Commission, Fragmentation of International Law, n 9 above, 245.

92 Democratic Republic of the Congo v Uganda, International Court of Justice, Judgment 19
Dec 2005, separate opinion of Judge Simma, paras 38–41.
 The Fragmentation of International Law 639
at stake in the so-called ‘war on terror’. The law can, however, only take us so far. The
ICRC customary law study and the ILC’s work on fragmentation also help us deter-
mine how far the law currently goes and they sharpen the issues that we must confront
when efforts are made to wind back the protection of IHL and IHRL.
ANTHONY E CASSIMATIS*

* BA LLB (Hons)(Qld) LLM (Cantab) PhD (Qld); Senior Lecturer, TC Beirne School of Law
and Fellow, Centre for Public, International and Comparative Law, University of Queensland. An
earlier version of this article was presented at a conference on the emergence of customary inter-
national humanitarian law that was jointly organized in November 2006 by the Australian Red
Cross and Flinders University, Adelaide, Australia. I would like to acknowledge the assistance
and general comments provided by Dr Jonathan Crowe, the assistance derived from the specific
comments of one of the anonymous referees, the encouragement of Professor Charles Rickett, the
financial support of the Centre for Public, International and Comparative Law, and the research
assistance provided by Angelina Montserrat Vidal León. I remain, however, entirely responsible
for any errors, omissions, or infelicities.
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.