Fragmentation - Public International Law.

Welcome back everybody to our lectures in public international law. In this lecture, specifically what we're going to be doing is spending some time looking at the nature of fragmentation of international law. What does fragmentation mean? How can we apply it? What are the causes of fragmentation? What are the problems and or the opportunities associated with the fragmentation of public international law? And how can we illustrate this fragmentation by looking at specific legal regimes? Specifically then in this lecture, we will ask the question about what fragmentation is, how we define it, and what the scope of fragmentation is. We will talk about the main causes of fragmentation, highlighting the nature of the structural causes, the functional or subject matter causes, and even the political causes associated with fragmentation. We'll think about the ILC's report on fragmentation and its importance to our broader understanding, before then looking at case studies. Case studies concerning multilateral versus regional trade, looking at the interaction between environmental law, investment law, trade law, and human rights law. And so fundamentally then, when we think about what fragmentation of international law refers to, we can look no further or really should look no further than looking immediately at the Commission's report by the International Law Commission, authored by Marti Koskiniemi. Now, they make the point here in their sort of explanation that fragmentation of international law, difficulties arising from the diversification and expansion of international law, the title, is the title chosen by the International Law Commission to address the phenomenon of multiple regime formations and the associated risk of conflicting rules and interpretations. From this then, we can conclude that the notion of fragmentation refers broadly to a phenomenon that exists in international law of the increasing diversification, proliferation, and separation of different legal norms, different institutions, and different regimes. One that is such that the one relatively coherent system, potentially we could argue, was once relatively coherent, can be seen as being fragmented, hence how we define it in language. And so, in other words, this ILC Commission paper firstly thinks about the diversification and expansion of international law, meaning the more treaties, more specialized legal regimes, such as trade, the human rights, the environments, investment, the increasing existence of each of these different types of regimes, all with their own rules, institutions, and processes. While as a result of the diversification and expansion of international law, there is a fragmentation emphasis, a fragmentation dimension, which emphasizes that these regimes may operate somewhat independently, maybe even described as self-contained regimes. And the logical extension of that is that if there are these self-contained regimes, each they have their own interpretative practices, and it means that they may not communicate or even align fully with the other regimes, thus they may produce conflicting or overlapping obligations and interpretations. So, we can see that the term fragmentation has both a descriptive and a normative consideration associated with it. From the descriptive analysis, we're just thinking about how fragmentation can result in and lead to, or at least it has resulted in and has led to, the splitting of different regimes into different jurisdictions, and this leads to overlapping obligations, overlapping interpretations. But there is also normative concerns, in the sense that public international law may lose coherence, it may lose predictability, it may lose the unity of rules, and that when states are acting in a way that is to benefit their own best interests, things like forum shopping, overlapping jurisdictions, and conflicting obligations becomes more and more likely. So, broadly speaking, fragmentation has a quite negative connotation within international legal spaces, but it's not to suggest that there isn't some positive aspects associated with this idea of fragmentation. Quote, depending on whom you ask, fragmentation has meant many and all of these for international law. A danger, an opportunity, a passé, a cliché, empowering, destructive, creative. The concept of fragmentation has been a mirror reflecting international lawyers' perceptions of themselves, their field, its prospects for in the future. So, you can take a relatively, or at least an initially positive viewpoint when thinking about fragmentation, in the sense that the creation of new legal regimes, the creation of treaties, the creation of new rules, means that there is more international law that is regulating areas of importance, okay. If there is fragmentation, let's say, concerning environmental regulations between the traditional understandings of international trade law and other areas of environmental law, that is a problem in the sense that there is this normative lack of coherence, but it is also an opportunity in the sense that there are just more rules regulating things that we can all probably come to a conclusion on and can all agree are problems like the environment or trade disparities or things like that. But it is more than just the proliferation of new law that causes fragmentation. There are several interlinked structural, functional and institutional causes which drives this phenomenon of fragmentation. So, we're going to spend quite a long time thinking about each of these individually. Beginning first then, the structural or institutional causes of fragmentation can be divided itself into a collection of systematic ideas. The first is, there is just this lack of a central legislature, okay, a central legislator. International law lacks a single global legislative body that can enact, that can amend, that can harmonize international laws in one location. The result is decentralization and it means that this decentralization creates multiple treaty makers, multiple institutions and multiple potentially conflicting regimes as a result. The International Law Commission's report on this particular topic notes this structural feature of the system. This is a feature of international law. Scholars have often remarked that the international legal system lacks a central lawmaker. A source of fragmentation stems from the fact that there is no central lawmaker. Given that there is no central legislative authority in the international system, international law comprises a variety of overlapping and at times contradictory regimes. Fundamentally, this could be described as a unique quality of international law. When we think about more theoretically and more philosophically the nature of international law, international law is unique to that of other legal regimes in the sense that this decentralization and this lack of overarching constitutionalization results in fragmentation. That's fundamentally what's going to happen. Because there is no clear hierarchy, because there is no clear institutional hierarchy or overreaching court of final appeal, if you will, like there is for example in the United States with the US Supreme Court or in the United Kingdom with the UK Supreme Court, there is no court of final appeal, there is no appellate jurisdictions in international law. Different institutions may proceed in parallel without adequate coordination. Many examples of this can be seen in relation to the areas of international human rights, international humanitarian law and international criminal law, with at any one time potentially the European Court on Human Rights, the International Criminal Court and the European Court of Justice all regulating and dealing with disputes over a very similar jurisdictional matter. The jurisdictional matter of for example the Russian invasion of Ukraine, that has been dealt with and have a variety of different disputes have been dealt with by all three of those institutions. There is no single sort of funnel that takes you to one single supreme court at the top. This structural decentralization therefore fosters fragmentation by enabling multiple independent norm-makers, multiple tribunals and multiple interpretive practices to flourish within this broader landscape of international law. Taking this concept further then, when we think specifically about the sort of judicial decisions and the judicial institutions of international law, we can see that with more specialized dispute settlement institutions we see a greater risk of an overlapping of jurisdictions. So for example we have regional human rights courts, we also have investment arbitration tribunals, you have ICSID and UNSET trial for example, that's two in and of themselves, you have trade dispute panels, mainly through things like the World Trade Organization, you also have environmental compliance bodies, you have the law of the sea tribunal, you have the international criminal court, you have the international court of justice, all of these are a variety of different examples of dispute settlement institutions and there is no one clear gap in between each of these different things. There may be, for example, environmental questions that are concerned in the law of the sea tribunal and vice versa. There may be regional human rights courts that have to arbitrate and have to resolve disputes that concern investment arbitration, that concerns investment treaties and vice versa, again investment and trade dispute panels. The ICC and the ICJ, despite dealing with different subjects, dealing one with individuals and the other with states, can still be theoretically concerning themselves over the same subject matter. They could still be concerned in the same conflict or civil war or collection of international crimes that are alleged by by some of the parties. And so the result of this is we are seeing this overlapping jurisdiction, we are seeing divergent interpretations and we see a lack of a systematic coordination. Again, this is part of institutional fragmentation as concerned by the International Law Commission's study group. Quote, the proliferation of international courts and tribunals, which at least superficially should be regarded as a positive development as it evidences a trend towards judicial settlement of international disputes, does not come without complications. The main concern with this almost forensic creation of new international courts and tribunals is that it has occurred in the absence of an overarching framework within which the international judicial bodies operate. This absence of a formalized system can create potential problems. This illustrates not only the point that I've just made regarding courts and tribunals and judicial mechanisms, but it also illustrates the point that I made a second ago about how fragmentation can mean many things to many people. And in some circumstances there is at least a very very thin silver lining over the idea of fragmentation. And this is illustrated and elucidated upon in the first sentence of this particular passage by Baski, essentially arguing that the fact that we have a problem of fragmentation in the first place is evidence that there is a growing trend towards judicial settlement of international disputes, towards regulating on matters of an international nature, basically towards using international law as a tool for compliance, a tool for norm-setting, a tool for dispute resolution. Which is all of course a good thing if we're international lawyers. But of course we can still see that this causes fragmentation, which is the sort of double-edged sword that we're examining here, because each institution may develop its own jurisprudence, each institution may apply different legal frameworks, and problematically each institution may not coordinate with other institutions, all leading to inconsistent interpretations and obligations. An example of this, just a sort of anecdotal example that just came into my head right now, is the relationship that was had between the European Court on Human Rights versus the International Criminal Tribunal for the former Yugoslavia. When we get to looking at international criminal law, we will explore this in more detail, but there were dueling jurisdictional questions. There was the Human Rights Court, and then there was the UN Security Council-established ICTY, which deals with international criminal responsibility, but there was an overlapping of ideas and of problems, and this could sometimes have caused inconsistent interpretations. So how do we then think about international law from a hierarchical perspective? Because what it says here on screen is that there is a lack of formal hierarchy, and that's technically true. However, there are some norms that provide some indication of hierarchy. So, for example, use Kogane's norms. Obligations over Omnes, Article 103 of the UN Charter, are all examples of what appear to be higher in hierarchical nature, compared to other norms and obligations. When we get to use Kogane's obligations, for example, we will explore what that refers to, and how things like these pre-emptory norms of international law provide us with almost a formidable bedrock by which treaties cannot supersede or overrule. But even though we've got some norms that provide some indication of hierarchy, it wouldn't be correct to say that there is a formal hierarchical structure in international law. These hint at hierarchy, these hint at some norms being more prescient than others. Fundamentally though, international law lacks a comprehensive hierarchical structure that is analogous to, for example, domestic legal orders. Again, this is a flagged topic by the ILC study group. Without any kind of clear hierarchical or systematic mechanism for adjudicating conflicts among norms, fragmentation is more likely. Again, focusing on this idea that fragmentation is just a natural result of the way in which international law is just fundamentally structured is also an issue that we need to concern ourselves in. The issue of fragmentation has arisen owing to the emergence of a number of closely integrated sets of rules of international law pertaining to particular subject areas, such as human rights, the environment, trade, international crimes, and so on. Such sets often combine specific primary rules with specific secondary rules. They claim autonomy from principles of general international law. This autonomy has sometimes led to conflicts between such specialized sets of rules and the general law, as well as between different sets of specialized rules. So we need to make it very clear that the autonomy, the idea of institutional and procedural differentiation among regimes, having an autonomy separate to that of other regimes, has again also contributed to fragmentation. Each regime effectively acts as a self-contained framework, but when it overlaps with others, okay, from the perspective and from the viewpoint of the framework in which you are looking, it because you're not looking into the frameworks, but from the sort of more macro perspective of an international lawyer, tensions and multiplicity can arise as a result. They may also just be functional and subject matter reasons and causes for why fragmentation happens. So the fact is that when we look at issues, as globalization and as transnational issues have expanded, international law has just proliferated into special fields. We have human rights law, we have environmental law, we have investment law, trade, maritime law, we have aviation law, cyber security law, climate change law, which is somehow different to environmental law, and even the law of outer space. All of these are just individual institutions. There's no rules that are regulating any of them in accordance with others, if that makes sense. Each field often develops its own treaties, its own institutions. The emergence of so-called self-contained regimes, such as trade law, environmental law, human rights law, climate change law, etc., etc., contributed in a certain way to the problem of incoherence of general international law. It's instability and inconsistency which brings about normative and institutional collisions. This particular quote is useful because what is being argued here in this particular paper is, or at least in this quotation and partially in this paper, is that we can shift away from just recognizing the existence of fragmentation to looking at the normative consequences therein, thinking of the fact that there will be an incoherence of general international law. The ever more sophisticated development of some of these subfields of international law, while appearing to be a positive development towards a future in which that area of international law becomes incredibly sophisticated, can lead to a broader problem with general international law. Do we sacrifice general international law to these different fields that become more and more sophisticated, even if from a sort of macro perspective, stepping back as just general international lawyers, we can just look at this whole regime and just see an ever-growing amount of inconsistency, institutional collisions, and complexity? This functional specialization then means norms and institutions evolve to address specific subject matters rather than remain general, and the segmentation leads to multiple overlapping regimes, as we've already mentioned. All of these things ultimately feed into each other, they ultimately feed into the problem, the problem being that of fragmentation. You could also make the argument, as many have, that when we think about international law, when we think about specific areas within international law, it is not the case that we can just neatly fit each of these different areas into their own boxes, such that issues concerning, for example, human rights will necessarily concern issues such as armed conflict, where international humanitarian law may not apply, where international law on the use of force may not apply, then it might just be the case that the only regime that is left standing is that of human rights law. And you could make a point about that, as I believe was made by professors thinking about the recent Trump administration attacks on suspected narco-terrorists in open waters. The idea here being that these were not the flagships of Venezuela, so we can't engage international law on the use of force, nor can we really engage international humanitarian law, because this isn't a use of force, and this isn't an armed conflict per se, so what is left? Well, what is left is human rights law, and what we see there is an example of human rights law being concerned in an issue which might ostensibly, or which might on its face, look like an issue of international humanitarian law. A similar issue can be seen when we think about, for example, the cross-cutting issues with the environment. The environment not only crosses borders, but it also crosses disciplines. The environment can be affected by the economy, by economic developments. Rights to drill by oil companies in host states are regulated by international investment disputes and international investment law, and so the result here is that you have an environmental issue that is being regulated by international investment law. Similarly, trade and investment, of course, interrelate with each other, and so too do human rights law with environmental obligations. Just look at the most recent ICJ advisory opinion on the obligations of states concerning the environment. When you see, then, that there are subject matters that are cross-cutting, this increases the likelihood of regime interaction, but the problem here is that this is just a necessary feature of the area of law, but we don't have this in other areas. If we looked at domestic law, for example, you could see that there are cross-cutting issues there. So, for example, the law of trusts interrelates quite a lot with the law of property, with land law. We can see, also, that laws concerning contracts relate to commercial aspects, but also can relate to family law, and all these different things. In a domestic situation, the law is not neatly divided into each of these different boxes, but it is also... there is a lot of interaction and interrelation, but there's no fragmentation there in a domestic legal system. And one of the reasons for this is it's not just the fact that there are cross-cutting issues, it is the fact there are cross-cutting issues without any kind of broader hierarchical constitutionalization, or broader structure of international law, that creates a semblance of unanimity, of uniformity across the legal system. With all of these being set up, then, with the fact that there is no world legislator, with the fact that there is no hierarchical court appellate structure in the international sphere, and with the fact that there are cross-cutting issues, we can also concern ourselves in the political reasons why fragmentation happens. Because it is not just the fact that these things will naturally occur, but there are arguments to make that states have a strategic interest in being able to pick and choose which areas of law they hone in on and regulate, which will naturally tie into a greater amount of fragmentation. A simple example is that states may negotiate treaties in a particular field in order to advance their own interests. Think back to our lecture that we did a couple of weeks ago on the relationship between international law and international relations. Thinking about, for example, a realist interpretation of international relations, you note that there is this sort of global anarchy that exists, and that states act in their own interest, in their own individualist interest. And so, in doing so, we can only expect states to advance their own policy priorities, and so the result of this is fragmentation either by design, if it benefits states for fragmentation to exist, or as a consequence of them tying into their own policy priorities. Speaking on this issue specifically, Anne Peters makes the point that the political causes may be more interesting, i.e. political causes thinking about fragmentation. States negotiating treaties normally have different views about policy priorities, which translate into relationships between different regimes. For example, trade agreements and treaties on cultural or biological diversity. Moreover, realist analyses have depicted fragmentation as the result of a deliberate agenda of powerful states. Now think about this in more detail for a second. Just think about this very, very quickly, that fundamentally, if it is the case that states are going to be bound up and obliged to do things that aren't necessarily in their interests, as per their sort of attachment to international law, then the idea of fragmentation provides a useful tool by which powerful states are able to avoid their own obligations in order to act in their own best interests. If there are obligations on the part of states to dispense with quite significant resources in order to ensure that they are fundamentally combating against climate change, then a fragmented legal system, which provides for complexity and incoherence and inconsistencies with regards to those obligations, will only benefit the powerful states who don't want to provide useful mechanisms for combating climate change. Hence why the idea of fragmentation can be depicted as a result, as a sort of feature, not a bug, of the international legal system for these powerful states that are seeking to benefit. It essentially means that some regimes may be developed in such a way that they can claim autonomy or even exception from the general law, leading to fragmentation. Additionally, they could be developed in such a way as to undermine other areas of law, and we can potentially see this when we look at the relationship between multilateral and regional developments in international trade law. It benefits, for example, the United States to depart from the multilateral trading system of the WTO, just given their track record with WTO dispute settlement, and so therefore the development of regionalization, the development of bilateral trade negotiations, and the creation of a new autonomous legal regime separate to that of the WTO, not only leads to fragmentation, but it also leads to the undermining of the regime that they want to see undermined. But it's not just states that involve themselves in international legal making. It is also the case that heterogeneous actors can also provide for the fragmentation of international law, so international norm-making institutions and interpretations may involve actors that exist beyond the states. It might involve international organizations, it might involve NGOs, non-governmental organizations, private actors, epistemic communities more broadly, and these actors bring different perspectives, they engage in different regimes, and they also all themselves contribute to a broader normative diversification of not just international law but also international relations. While this might be described as more of a functional or an institutional cause of fragmentation and therefore would probably be better off in a different section of this lecture, there are still political dimensions insofar as these actors pursue divergent agendas, they pursue agendas which are different to each other. International organizations might act in a way that is disparate to that of the wills or the motivations and desires of NGOs or private actors, and so all of these things together means that the political motivations can guide and can sort of push forward and diversify the international legal regime which results in fragmentation, results in diversification. Finally then, I just want to, before we move on to looking at a couple of case studies, I want to just very quickly think about the idea of power and hegemony but also think about domestic sources because it's not just international legal sources but domestic sources also contribute to this problem. Thinking first then about power and hegemony of states, some regimes may be heavily influenced by certain states or by certain groups of states. This might lead to regime-specific frameworks that reflect particular interests. This makes perfect sense given the idea of powerful states in sort of hegemonic spheres of influence. Because states may design regimes in a way to maximize their own interests, as we noted a second ago, there may be less inclination to align those regimes fully with other regimes, again therefore creating a broader sense of fragmentation. That same paper that I just described, written, authored by Ann Peters, again describes fragmentation as also a political outcome of regime choice and the power dynamics of negotiations. With regard to domestic sources then, of course fragmentation can have its roots in domestic spheres, despite the fact that fragmentation does not necessarily happen in a domestic legal system. So you have different government departments that negotiate together separate treaties, often with limited cross departmental coordination, and so this can also lead to major problems. Again citing Peters, quote, different issue areas are handled by different departments of governments, which negotiate different treaties and different administrative authorities then apply them. So fragmentation is not just an issue that is concerned strictly with international law. The sort of results of fragmentation and the causes and consequences of fragmentation are heavily influenced by international law, but it is also domestic legal systems that have a problem as well, in the sense that the core root of some of the causes of fragmentation is the fact that in a domestic legal system different government departments negotiate different treaties in different ways and result in different applications, and result in very little cross-coordination, which can then result in and cause bring about a sort of fragmented telos. The domestic driver then spills over into the international legal system. If a state's trade ministry, for example, were to negotiate a treaty without deep coordination with its human rights or environmental ministers, then you might see that by favoring trade or investment they are then diverging and conflicting with potentially obligations that that same state has in international human rights law or international environmental law. So let's look at some case studies then. Let's look at some interrelational dynamics and how this has shaped certain areas of international law, and there's no better place to start by thinking about international trade law. So obviously as a basic contextual foundation the World Trade Organization is the principal multilateral institution for world trade organizations, for regulation of world trade. It comprises many states, most states in the world in fact, and it is governed via a variety of a multitude of multilateral trade treaties. You have the General Agreement on Tariffs and Trade, you have the General Agreement on Trade and Services, you have agreements concerning intellectual property rights, you have agreements on technical barriers to trade and sanitary and phytosanitary products and all these different kinds of things, the agreements on dumping and anti-dumping regulations. And over decades we have seen, at least in the sort of peak of international multilateralism in the 1990s, we saw a great entrenchment of multilateral treaty arrangements within international trade law. However in recent decades the number of regional trade agreements, RTAs, as well as preferential trade arrangements have proliferated and what this does is result in the fragmentation of international trade law. The WTO allows for provides for regional trade arrangements, things like customs unions as well, as part of their exceptions within the WTO regulations but it nevertheless means that there is certain amounts of overlapping regimes and regulations that we would describe as fragmented. A state may be both party to the WTO and also to multiple regional trade arrangements. The rules in the regional trade arrangements might differ from or add to those of the WTO. A lot of regional trade agreements actually entrench further the basic preliminary desires of the World Trade Organization, the idea of reducing trade barriers and tariff reduction and things like that. So it doesn't necessarily mean there's always a problem, it could just be the case that the World Trade Organization represents a sort of a base level floor in which regulation of trade should be done and these regional trade agreements add to those rules. That is still nevertheless a sense of fragmentation, a diversification of regional agreements because different regional trade agreements can be different from each other while also still under the overarching umbrella of the WTO. Regional trade arrangements also often allow or create exceptions or special treatments that are maybe not contained in the WTO agreements. Again, this might also include things like divergence on dispute settlement procedures, on origins rules and on tariffs. We can see that the World Trade Organization, or at least I say regional trade agreements, may establish their own dispute settlement mechanism rather than relying on the sort of incipient or at the very least unable to operate WTO given the the appellate body crisis. What this does is reduces reliance on or deference to the multilateral institution of the WTO, all of which could lead to a system in which the multilateral system is weakened if states increasingly rely on RTAs instead of on the multilateral forum. A specific argument that we can see is cited here where they say with World Trade Organization negotiations stagnant and preferential trade agreements rapidly proliferating, or regional trade agreements if you want, international trade relations are shifting markedly towards bilateralism. The resulting fragmentation in the international trade regime poses serious risks to economic welfare and the coherence of international trade law. So you might think, well it's not too bad of an issue if you've got the WTO and then you have regional trade agreements between multiple states that add to the basic principles of the WTO. And that may not be necessarily incorrect, but when you then start thinking about bilateral trade agreements of which many exist and are in force, it only takes a little bit of time for these agreements then to start to diverge from each other in terms of their international legal obligations. And then we end up with a very complex web of international trade law with no real coherence within it, and something that the WTO as a multilateral institution exists to fight against. Quote, the multilateral trading system is facing a great danger of fragmentation. Its modus operandi, multilateralism, is increasingly becoming clogged by trade barriers created by the proliferation of preferential regional trading blocs. Fundamentally then we can see here that RTAs gradually erode the World Trade Organization's core principles, as this study basically argues for. Specifically in this paper they argue that it is the principle of non-discrimination that can lead to major erosions of this principle, and again impede on coherence. In practice then, a state subject to multiple trade agreements may have to decide which rules apply when there is a dispute that arises. To what extent, if there is a dispute, what takes precedent? Is it the multilateral rules of the WTO, or is it a more specific regional trade agreement, or even a bilateral trade arrangement? A regional trade arrangement may permit certain trade distorting subsidies or rules on origination that differ from WTO norms, and so what happens there when that is the case? The WTO cannot regulate and resolve disputes on the basis of regional trade agreements that they do not have jurisdiction over, and so this creates uncertainty, it creates potential inconsistency, and it creates pressures on the idea of the multilateral system's coherence. If you are a believer in multilateralism as a mode of legal regulation within public international law, then the existence of regional trade agreements and the existence of bilateral trade agreements is fundamentally a problem for your desired belief structure. It also raises interpretive questions, so for example, if a dispute arises under a regional trade agreement, should the panel consider WTO jurisprudence as instructive of what to do, or should they treat exclusively the regional trade agreement as a self-contained regime? Fundamentally, the WTO does not have jurisdiction necessarily over regional trade agreements and their rules, but is it the case that the dispute mechanism that exists in a regional trade agreement, can they provide the jurisdiction or use the jurisdiction of the of WTO jurisprudence to cement or to bolster their interpretative guidance on the correct course of action given a dispute? These are all questions that are arising as the result of turning away from multilateralism, turning away from the WTO as a multilateral institution and towards more regional and bilateral negotiations. Another example, of course, concerns the environment. Environmental law is a completely cross-cutting issue. It is an issue that fundamentally basically engages all aspects of international law. You can think about the environmental concerns regulating international law of the sea, environmental concerns with regards to the international law of armed conflict, environmental concerns for economic law, trade and investment, human rights law, international law concerning outer space, aviation law, literally any area of law that you can think of as environmental concerns. And so environmental issues today lie at the intersections of different regimes, to such an extent that it doesn't even necessarily make sense to say that international environmental law is its own separate distinct body of law. It's almost like every other area of international law concerns or engages environmental issues. This raises a problem, of course, because then the state has obligations, therefore, under a variety of different regimes. So, for example, a mining project can engage environmental concerns like pollution, but also engage in state dispute settlement issues. We can see that there are often differing normative logics concerning this as well. Environmental treaties might prioritize the principles of precaution and sustainability when it comes to the ecosystem protection, two quite important rules and principles within international environmental law, but this will often butt heads with other areas of law that have their own basic principles that are important. So in international investment law, for example, there is a strong emphasis on the protection of the investor, the compensation of investors for expropriation or for potentially discrimination. Seemingly as well, treaties that are related to trade might prioritize liberalization of trade, they might prioritize non-discrimination and sort of anti-protectionism. All of these same facts, they trigger different obligations. Environmental disputes can also be handled across a variety of different regimes. There are multiple adjudicative fora for environmental concerns. There is the ICJ, as we've already noted, there are also the World Trade Organization has cases concerning in the environment, so too does ICSID and UNCTRAL, the Law of the Sea Tribunal, all of which have their own different procedures, their own different standards, their own different remedies. You could throw into the mix the European Court of Human Rights, you can also the European Court of Justice with relation to the EU, all of which are their own interlapping and interdicting issues. Finally, some environmental treaties may not cover all aspects of the subject. So, for example, investment and trade treaties may not integrate environmental protection effectively, because investment and trade treaties aren't necessarily dealing in environmental protection on its own. That is just a subsidiary issue for an investment treaty or for a trade treaty, and so the environmental protections or the provisions concerning human rights or labor laws or slavery regulations are all tending to be tacked on to trade and investment law regulations in that kind of way. The result is a sort of incomplete regulation. And we can see this here, we can see that in the textbook chapter on the Oxford Handbook of Environmental Law, the textbook chapter on fragmentation, there is this pointing out that when we look at, for example, multilateral environmental agreements, they now number in their hundreds, and the governance of environmental matters does not always happen with norms and institutions constituted to pursue other functions, such as trade liberalization or investment protection. Quote, multilateral environment agreements covering specific issues and sectors now number in the hundreds, and at times their aims and methods may be in opposition, while gaps remain especially in implementation. There is a long-standing scholarly engagement with the fragmentation of international law into largely self-contained regimes, such as trade, investment law of the sea, and human rights. Such regimes are of fundamental importance to the governance of environmental matters. An emphasis that we can see, for example, in the ILC working paper is the emphasis placed on when a ship transporting oil raises issues of trade, environmental harm, harm concerning law of the sea, and it's not always clear which regime should apply in that particular regard. Should international trade law take precedent? Should international law concerning the environment? Should the law of the sea take precedent? A similar rule can be seen if we think about regulation of activities in space. We think about regulation of activities on land that are human rights adjacent, all of which creates a major problem. The combined application, this is a useful illustration by the way of how investment law and human rights, and by extension environmental law, can operate both in parallel and also in conflict with each other, highlighting the impact that potentially the combination of these regimes can have towards pushing forward and empowering certain legal regimes, but also still being difficult to solve the problems of fragmentation. So, quote, the combined application of international finance and investment law and the application of international human rights law may reduce the imbalances in the specialized field of international finance and investment law. At the same time, the combination may also add teeth to international human rights law in terms of enforcement until policymakers in the long run agree on the lex forenda measure to help solve the problems caused by fragmentation of international law. This paper actually argues that a combination of the two can actually empower each other, so that there is a way in which they can operate in parallel or in conflict. So there are still ideas that we can think about here. If we discuss this in a bit more detail then, let's assume with this concrete scenario, let's assume that a foreign investor builds a mining project in a developing country. The host state, the state which is hosting the investments, adopts stricter environmental regulations that are established under a multilateral environmental agreement. The investor invokes a bilateral investment treaty and claims an investment treaty violation because of this regulatory change. So the investor and the host state have a bilateral investment treaty and it is alleged that this is violated on the basis of the adoption of a stricter environmental regulation under the multilateral environmental agreement. At the same time, the host state exports the minerals and is subject to the trade law obligations under the WTO, or even alternatively under a regional trade agreement. Each regime may offer different avenues for claims, for defenses, and for remedies. The investor and the state may find themselves ping-ponging among different avenues, different fora. They might invoke different treaties, invoking and leading to a potential inconsistency. For example, the ICSID, Investor State Dispute Settlement Tribunal, fines for the investor under the bilateral trade agreement, bilateral investment treaty, sorry. The state then uses environmental obligations to justify its regulation. The result of this is that you could have theoretically three different institutions looking at the same subject matter and coming to three different conclusions. There is therefore a fragmentation of obligations, normative uncertainty, and a risk of incoherence. In this way, the concept of regime interaction is central to fragmentation. The light of other rules and the recognition of self-contained regimes are important tools, but there's still a messy application. The sort of the lex specialis rule, the lex specialis principle, does not solve every single problem, and so you have a major issue associated with that. So in terms of a summary and a sort of further reading, I've listed here some books and papers and articles for this particular topic. And of course, if you want to really look at this in the greatest detail, you should really start by looking at the International Law Commissions, authored by Martti Koskineniemi, on the fragmentation of international law difficulties arising from diversification and expansion of international law. Koskineniemi himself also wrote another article concerning fragmentation, and then there are other books and articles on this particular topic as well. The next lecture is going to concern the sources of public international law. We're going to talk about what the classical sources are, and we will talk about the origins of the classical sources, article 38 of the ICJ statutes, and then we will talk about the theoretical and philosophical approaches to the sources. What do we mean by sources? Do we mean formal versus material sources? Is there a hierarchy of sources? Is there an extension beyond the traditional doctrine of article 38-1? All of this, of course, is going to be explored in the next lesson, before we then start looking at each of the individual sources on their own, in their own separate lecture, one on treaties, one on custom, one on general principles, etc.