UNITY vs. DIVERSITY: THE FRAGMENTATION OF INTERNATIONAL LAW

In the last decades, international law has been challenged by the emergence of specialized regimes, such as trade law, human rights law, European law, which contributed to the fragmentation of international law. The scholarly debate has focused on the repercussions of these practices on the global order.

The term “fragmentation” is used to refer to the division of international law into “regional or functional regimes with special interests and ethos.” This division represents a potential for conflict among different subsystems or courts. A relevant example is ICTY’s Tadic case deviating from the “effective control” test used by the ICJ in the Nicaragua case. There is fragmentation when two or more rules apply to the same issue and point in different directions; or one rule applies to a given matter but is interpreted differently. In other words, fragmentation occurs where two treaties or two tribunals suggest different ways of dealing with the same problem. Fragmentation has been presented as opposing unity. Some authors suggest that while unity encompasses reliability, consistency or credibility, fragmentation represents a danger.

Prost points out that there are many different views about fragmentation. Some scholars, including Hafner argue that fragmentation has both positive and negative effects: on the one hand, States are more inclined to comply with regional norms that reflect the particular situation in that area. On the other hand, fragmentation could generate negative effects by exposing the contradictions between the various legal regulations. According to Martineau, since fragmentation has both pros and cons, the disagreement is which of the aspects is predominant.

From the perspective of classical public international lawyers, fragmentation represents a threat. Koskenniemi and Leino point out that the standard formulations used by classical scholars to characterize fragmentation are: “loss of overall control”, “fragmented and unmanageable.” Judge Guillaume considers that special regimes might be breaking up international law “in such a way as to jeopardise its unity.”

The International Law Commission (ILC) in its study on fragmentation stated that it “could endanger international law’s stability as well as its consistency and comprehensive nature.” The study suggests that fragmentation poses a threat to the “credibility, reliability and authority of international law.”

However, the prevailing view among scholars is that the anxiety over fragmentation is overstated. It is argued that fragmentation is an unavoidable process in a rapidly transforming international system which reflects specialization of international regimes. Most scholars express confidence in the ability of existing bodies to deal with fragmentation. Charney for instance highlights that “alternative forums complement and strengthen the system of international law.” Additionally, Dupuy and Pauwelyn consider that the establishment of new jurisdictions and systems improves efficiency and might lead to better law. Therefore, in their view, “a serious problem does not exist.”

It is largely consent-based that international law nowadays is fragmented. A wide range of different treaties, courts and tribunals exist. Most scholars consider that this is not a bad thing. However, these different regimes should be inter-connected and considered through norms of general international law.

BIBLIOGRAPHY

• J.I. Charney, The Impact on the International Legal System of the Growth of International Courts and Tribunals, 31 N.Y.U. Journal of International Law and Politics, (1999)

• P.M. Dupuy, The Danger of Fragmentation or Unification of the International Legal System and the International Court of Justice, 31 International Law and Politics, (1999)

• G. Guillaume, The Future of International Judicial Institutions, 44 ICLQ 862 (1995)

• G. Hafner, Risks Ensuing from the Fragmentation of International Law, in International Law Commission, Report of the Working Group on Long-term Programme of Work, ILC (LII)/WG/LT/L.1/Add. 1 (25 July 2000)

• G. Hafner, Pros and Cons Ensuing from Fragmentation of International Law, 25 Michigan Journal of International Law, (2004)

• M. Koskenniemi, International Law: Constitutionalism, Managerialism and the Ethos of Legal Education, 1 European Journal of Legal Studies, (2007)

• M. Koskenniemi, P. Leino, Fragmentation of International Law? Postmodern Anxieties, 15 Leiden Journal of International Law, (2002)

• A.C. Martineau, The Rhetoric of Fragmentation: Fear and Faith in International Law, 22 Leiden Journal of International Law, (2009)

• J. Pauwelyn, Bridging Fragmentation and Unity: International Law as a Universe of Inter-Connected Islands, 25 Michigan Journal of International Law, (2004)

• M. Prost, All Shouting the Same Slogans: International Law’s Unities and the Politics of Fragmentation, 17 Finnish Yearbook of International Law, (2006)

• B. Simma, Fragmentation in a Positive Light, 25 Michigan Journal of International Law, (2004)

• ILC, “Report of the Study Group on the fragmentation of international law: Difficulties arising from the diversification and expansion of international law”, AN/CN.4/L.702, 18th July 2006

Viorela Bubau