Systemic Integration, Legal Theory and the ILC
Finnish Yearbook of International Law 2008, Vol. 19, pp. 157-182, 2010
18 Pages Posted: 12 Jan 2010 Last revised: 23 Nov 2010
Date Written: November 29, 2009
The International Law Commission (ILC) spent four years considering the problems associated with the fragmentation of international law. Unfortunately, the ILC chose to remain on the pragmatic level. This paper provides examples where the Final Report would have had to delve into theory and where it would have had to question common assumptions, but where it did not go far enough. It will also try to flesh out some of the consequences of merely accepting existing doctrines. The example used here is the so-called principle of systemic or systematic integration, which raises a plethora of theoretical problems and touches upon the very basis of the constitution of international law. The present article is an attempt to analyse the methodology of the Study Group in the structure of its argument without relying on orthodox deference to commonly accepted doctrines. This is a positivist-normativist’s deconstruction as well as a reconstruction of the merits of this claim. The aim is to reconstruct the foundation, the operation and the consequences that can follow from systemic integration on the basis of a strict adherence to positive law.
Keywords: International Law Commission, systemic integration, Vienna Convention on the Law of Treaties, International Legal Theory, Fragmentation
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