A 'Footnote as a Principle'. Mutual Supportiveness and Its Relevance in an Era of Fragmentation
Holger P. Hestermeyer et al. (dir.), Coexistence, Cooperation and Solidarity - Liber Amicorum Rüdiger Wolfrum, vol. II, Springer, 2011, pp. 1615-1638.
23 Pages Posted: 8 Oct 2013
Date Written: October 7, 2011
Multiple events or situations have been qualifi ed as “footnotes to history”. But footnotes are to history what they might also be to the progressive development of international law. In other words, they are neither the proper avenue for the crystallization of norms of customary international law nor the adequate receptacle of norms in statu nascendi. Footnotes are indeed oft en ignored or simply forgotten due to their isolated status in international documents, be they legal or nonlegal documents. The treatment of the principle or concept of mutual supportiveness in the Report of the International Law Commission (ILC) on Fragmentation of International Law: Difficulties arising from the Diversification and Expansion of International Law is an (un)conscious attempt at reducing mutual supportiveness to a “footnote to history”. The ILC Report mentions mutual supportiveness only in two instances, and then only briefly. First, to say that the “technique” of mutual supportiveness “seems more appropriate to play down that sense of conflict and to read the relevant materials from the perspective of their contribution to some generally shared–‘systemic’–objective”. Second, to convey that “often regimes operate on the basis of administrative coordination and ‘mutual supportiveness’ the point of which is to seek regime-optimal outcomes” before concluding that “while this is clearly appropriate in regard to treaty provisions that are framed in general or ‘programmatory’ terms, it seems less proper in regard to provisions establishing subjective rights or obligations the purpose of which it is to guarantee such rights”.
Suggested Citation: Suggested Citation