Review Essay, Contemporary Issues in the Law of Treaties
Duncan B. Hollis
Temple University - James E. Beasley School of Law
American Journal of International Law, Vol. 101, p. 695, 2007
Temple University Legal Studies Research Paper No. 2008-40
On the surface, CONTEMPORARY ISSUES IN THE LAW OF TREATIES, by Malgosia Fitzmaurice and Olufemi Elias, makes no overt claims regarding the debate over the fragmentation of international law. Yet on closer examination, I argue in this book review that their work has the potential to make an important contribution to that discourse. In both its format and content, CONTEMPORARY ISSUES IN THE LAW OF TREATIES offers an alternative vision of fragmentation, one where international law subdivides into specialized regimes, not solely by subject matter or geographic region, but by the individual sources of law themselves. Put simply, Fitzmaurice and Elias's work suggests that the law of treaties constitutes its own specialized, maturing regime within international law, standing alongside, rather than above, normative regimes such as human rights, international environmental law, or trade.
My review essay explores how the fragmentation lens informs this volume's analysis of some of the more complex and lasting treaty problems, such as how to define treaties, who can make them, and what consequences flow from their breach. More importantly, my essay critiques the authors' vision of treaty law as equivalent to substantive- or primary-rules of international law. I argue that, in doing so, they miss the opportunity to give treaty law an architectural, if not hegemonic, status, with the potential to ease the tension among competing international law norms, rather than further contributing to the fragmentation problem itself.
Number of Pages in PDF File: 8
Keywords: treaty, fragmentation, Hart, primary rules, secondary rules, breach, soft law, tacit amendment, ILC Study Group, optional clause jurisdiction, state responsibility, VCLT, vienna convention, kyoto protocol compliance
JEL Classification: K19, K33, K39
Date posted: January 15, 2008 ; Last revised: January 29, 2008