Abstract
Twenty years have passed since the author's delivery in 2000 of the general course of public international law at the Hague Academy of International Law, titled ‘The Unity of the International Legal Order’. That course was designed to combat the all-too-common idea that international law was in the process of ‘fragmentation’. It did so by developing a theory focused on the existence of and tension between two forms of unity in the international legal order: the formal unity (concerning the procedures by which primary norms are created and interpreted, and their non-compliance adjudicated) and the material unity (based on the content of certain norms of general international law, peremptory norms). Twenty years later, the time is ripe to revisit this theory to determine the extent to which it is still valid as a framework for the analysis of international law, particularly as an increasing number of ‘populist’ leaders very much seem to ignore, or voluntarily deny, the validity of some of the key substantial principles on which the international legal order was re-founded within and around the United Nations in 1945. When confronted with the factual reality of the present state of international relations as well as with the evolution of the law, one can conclude that the validity of the unity of the international legal order is unfailingly maintained, and that its role in upholding the international rule of law is more important now than ever.
Highlights
Twenty years is a period of time in which the passage from one generation to another has long been recognised. It is the name of a famous novel by Alexandre Dumas in which he tells the story of the three musketeers and their adventures!1 In a less picaresque and more modest way, it is the time that has elapsed since I had the chance to give, at an early age for this kind of exercise, my general course of public international law at The Hague Academy of International Law, The Netherlands
It was intended to combat the all-too-common idea that international law is in the process of ‘fragmentation’
Far from consecrating the existence of the phenomenon referred to by the catch-all concept of ‘fragmentation’, the members of the Study Group insisted, on the contrary, on what precisely makes up the unity of international law, envisaged as a legal order
Summary
Twenty years is a period of time in which the passage from one generation to another has long been recognised. Far from consecrating the existence of the phenomenon referred to by the catch-all concept of ‘fragmentation’, the members of the Study Group insisted, on the contrary, on what precisely makes up the unity of international law, envisaged as a legal order. This notion of a legal order, which it seems necessary to distinguish from the less precise notion of a ‘legal system’, was envisaged in the above-mentioned general course by reference to the respective theories of Kelsen, Santi Romano, Scelle and Hart: it is understood here as referring to an organised set of norms establishing, at the very least, the way in which these norms are created and modified as well as the relationship between the rights and obligations of the subjects to which they apply and the consequences attached to their violation. By the very fact of their definition, these norms are called upon to occupy a predominant position in a hierarchical scale, since they are non-derogable
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