Musa Njabulo Shongwe (University of Johannesburg) has posted Regime Collisions: Fragmentation Across International Law Disciplines (Kazan Journal of International Law and International Relations, 2016) on SSRN. Here is the abstract:
This paper is a study of the problem of fragmentation as it occurs across the disciplines of international law. These issues addressed deal with regime collisions and incompatibilities between the various international law disciplines. The expansion and diversification of international law has been accompanied by the rise of specialized regimes that have no clear relationship to each other, are not subject to coordination or review, and are not based on any hierarchical relations. Conflicts between international law regimes present problems of overlaps, uncertainty, and divergence in public international law today. The general problem dealt with in this paper is that specialized bodies of international law occasionally come into conflict over what international law means or requires. They often disagree on the meaning of particular treaties or international law rules, the relationship between them, and on who should have the authority or jurisdiction to interpret them. These disagreements lead to increasingly divergent decisions on international law obligations. And these are the conflict areas in which the traditional conflict rules have proven to be most unsatisfactory. Some self-contained regimes often claim exceptionalism or primacy over other rules of international law. In view of those problems, this paper seeks to discover the kinds of interaction between regimes that cause or contribute to the fragmentation of international law.
The inquiry commences with an examination of human rights law’s imperialism or dominance over other disciplines of international law. Particular attention is attributed to human rights law’s interaction with international humanitarian law and environmental law. The analysis proceeds by examining the interaction between the international trade regime with general international law and with environmental law. The climate change regime is also examined as to how it relates and interacts with general international law as well as international trade law. Lastly, the paper illustrates the effects of regime collisions in international dispute settlement through case law examples. The paper recommends that the plurality of regulatory institutions, normative values, and dispute settlement fora in international law need not be viewed as factors that threaten the whole system. The paper suggests that the unity and coherence of international law can and must be sought through an application of traditional legal techniques that will harmonize the competing claims of special law and general international law.