Special (self-contained) regimes

(11) Special (“self-contained”) regimes as lex specialis. A group of rules and

principles concerned with a particular subject matter may form a special regime

(“Self-contained regime”) and be applicable as lex specialis. Such special regimes

often have their own institutions to administer the relevant rules.

(12) Three types of special regime may be distinguished:

• Sometimes violation of a particular group of (primary) rules is accompanied

by a special set of (secondary) rules concerning breach and reactions to

breach. This is the main case provided for under article 55 of the ILC’s Draft

Articles on State Responsibility. 13

• Sometimes, however, a special regime is formed by a set of special rules,

including rights and obligations, relating to a special subject matter. Such

rules may concern a geographical area (e.g. a treaty on the protection of a

particular river) or some substantive matter (e.g. a treaty on the regulation of

13 Official Records of the General Assembly, Fifty-sixth Session, Supplement No. 10 (A/56/10),

para. 76. In the Case concerning the United States Diplomatic and Consular Staff in Tehran

(United States of America v. Iran) I.C.J. Reports 1980 at p. 40, para. 86, the Court said: “The

rules of diplomatic law, in short, constitute a self-contained regime which, on the one hand, lays

down the receiving State’s obligations regarding the facilities, privileges and immunities to be

accorded to diplomatic missions and, on the other, foresees their possible abuse by members of

the mission and specifies the means at the disposal of the receiving States to counter any such

abuse.”

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the uses of a particular weapon). Such a special regime may emerge on the

basis of a single treaty, several treaties, or treaty and treaties plus non-treaty

developments (subsequent practice or customary law). 14

• Finally, sometimes all the rules and principles that regulate a certain problem

area are collected together so as to express a “special regime”. Expressions

such as “law of the sea”, “humanitarian law”, “human rights law”,

“environmental law” and “trade law”, etc. give expression to some such

regimes. For interpretative purposes, such regimes may often be considered

in their entirety.

(13) Effect of the “speciality” of a regime. The significance of a special regime often

lies in the way its norms express a unified object and purpose. Thus, their interpretation

and application should, to the extent possible, reflect that object and purpose.

(14) The relationship between special regimes and general international law. A

special regime may prevail over general law under the same conditions as lex specialis

generally (see conclusions (8) and (10) above).

(15) The role of general law in special regimes: Gap-filling. The scope of special

laws is by definition narrower than that of general laws. It will thus frequently be the

case that a matter not regulated by special law will arise in the institutions charged to

administer it. In such cases, the relevant general law will apply. 15

14 See Case of the S.S. “Wimbledon”, P.C.I.J. Series A, No. 1 (1923) pp. 23-4, noting that the

provisions on the Kiel Canal in the Treaty of Versailles of 1919: “… differ on more than one

point from those to which other internal navigable waterways of the [German] Empire are

subjected … the Kiel Canal is open to the war vessels and transit traffic of all nations at peace

with Germany, whereas free access to the other German navigable waterways … is limited to

the Allied and Associated Powers alone … The provisions of the Kiel Canal are therefore

self-contained”.

15 Thus, in Bankovic v. Belgium and others, Decision of 12 December 2001, Admissibility,

ECHR 2001-XII, p. 351, para. 57, the European Court of Human Rights canvassed the

relationship between the European Convention on Human Rights and Fundamental Freedoms

and general international law as follows: “the Court recalls that the principles underlying the

Convention cannot be interpreted and applied in a vacuum. The Court must also take into

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(16) The role of general law in special regimes: Failure of special regimes. Special

regimes or the institutions set up by them may fail. Failure might be inferred when the

special laws have no reasonable prospect of appropriately addressing the objectives for

which they were enacted. It could be manifested, for example, by the failure of the

regime’s institutions to fulfil the purposes allotted to them, persistent non-compliance

by one or several of the parties, desuetude, withdrawal by parties instrumental for the

regime, among other causes. Whether a regime has “failed” in this sense, however,

would have to be assessed above all by an interpretation of its constitutional instruments.

In the event of failure, the relevant general law becomes applicable.