The European Court of Human Rights, in the 2016 case of Al Dulimi, voiced its concerns regarding fragmentation, and the “spirit of systemic harmonization” of international law. This judgement brought to light an important discussion – the fragmentation and diversification of international law. This topic, however, has been addressed by different international bodies, such as the UN and the ICJ, where the prevention of fragmentation has time and again been classified as the need of the hour.
It thus becomes pertinent to understand the real implications of fragmentation of international law, and examine whether it is truly necessary to do away with such jurisprudential diversification in today’s day and age. This article attempts to answer this question by contextualizing what fragmentation really is, and later analysing the hurdles and opportunities presented by such pluralism of international law in contemporary times.
After having analysed both sides of the issue, the article will present an opinion regarding the necessity of fragmentation in building a better international law model for the future, while also suggesting solutions which would allow the present paradigm to overcome the hurdles presented by fragmentation, through better management.
Understanding Fragmentation of International Law
‘Fragmentation’, in the context of international law, has been a subject of extensive scholarly discourse over the past decade, but has been identified and accounted for as early as the 1950s. Margaret A. Young defines this concept as a “long-observed phenomenon demonstrating uneven normative and institutional development, and evolution in inter-state relations”. Scholars have argued that fragmentation is a result of various regional groups developing law-making treaties. In addition to political pluralism around the world, fragmentation also reflects a collision of fundamentally contradictory rationalities.
Zürn and Faude have identified three main causes of fragmentation. First, decentralized structure of international law resulting from the absence of a central world legislator. Second, the difference in the handling of issues by different administrative bodies of different jurisdictions arising out of fundamental distinctions in the manner in which these jurisdictions interface with varying laws, issues, and legal subjects. Third, global problems triggering a demand for more international and specialized regulation. This was further elaborated by the 2006 UNGA Report relying upon the concept of functional differentiation. According to this concept, an increasing specialization of laws in society leads to the subsequent ‘autonomization’ and mutually exclusive evolution of such laws.
Areas of law that were once governed by general international law are thus being supplemented by specialist jurisprudential systems of law governing trade, human rights, laws of the sea, and many more fields. Each of these systems currently possesses its own principles and institutions which are a result of extensive evolution and development. In addition to the development of highly specialized areas of law, fragmentation has also been a result of a rise of new law-implementing actors such as international organizations, NGOs, and businesses.
Problems of Fragmentation
This institutional, procedural, and substantive diversification of the rule of law around the globe bears its own set of risks. These risks put at stake concepts such as unity, harmony, cohesion, order, and the quality of international law as a normative order. Owing to this, a number of post-modern anxieties and concerns continue to exist, as have been discussed below –
The primary problem associated with fragmentation is its tendency to create conflicts and significant incompatibilities with legal contributions as perceived by different jurisdictions around the world. The UNGA Report explains ‘conflict’ as the subject matter of the relevant rules or the legal subjects bound by them. Different international treaties have adopted either one of these two interpretations of the term. While the Vienna Convention on the Law of Treaties, an international agreement regulating treaties between States appears to have adopted the former perspective through the application of Art. 30 VCLT, other authorities have accordingly perceived conflict vis-à-vis the subject-matter of rules. The Report identifies conflict to be a phenomenon in every legal order, where two rules or principles suggest different ways of dealing with a problem. Such mutually incompatible obligations arise from diverging rules and regulations. While a substantial part of such incompatibility arising out of fragmentation consists of treaty conflicts, this can also include conflicts regarding code of conduct, or memoranda.
Fragmentation also leads to uncertainty owing to conflicts and contradictions between different rules, and laws of separate jurisdictions. This presents a significant problem before international or global systems of law where legal certainty constitutes a key element. A multiplicity of institutions creates conflicts over potentially overlapping jurisdictions of those courts. These fundamental differences reduce the procedural, as well as substantive predictability, and reliability of international law. The normative pull of international law is fortified by its stringency and consistency, and is thus undermined in a fragmented model. A direct effect of such variance is seen in the exploitation of fragmentation on the part of law-users and parties through forum-shopping where parties to a dispute tend to approach institutions based on strategic considerations of which forum and regime would respond best to their claims, and stance.
Opportunities of Fragmentation
As discussed above, fragmentation does pose a few glaring challenges before the international community. However, the essence of fragmentation which currently presents hurdles to international jurisprudence has the potential of opening doors to better, and a more structured application of international law around the globe. Micheal Zürn has characterised the process of fragmentation as an indicator for the emergence of a differentiated world polity instead of the dissolution of a pre-existing world order. The reason for this is that the increasing complexity of international law inherently requires differentiated norms and specialized law-appliers that systematically divide labour. This article shall analyse and examine the necessity of fragmentation in today’s world –
Such differentiation not only allows for greater all-round specialization, but also affords different jurisdictions a chance to express their political preferences and predispositions vis-à-vis different areas and subjects of law on an international scale. An example of this is seen in the formation of certain ‘counter conventions’ such as the UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions of 2005, and the Cartagena Protocol on Biodiversity of 2000 that specifically sought to mitigate the effects of the WTO regime. The existence of different regimes, and treaties emulating their own ideas, and opinions allows parties to align themselves with forums, and collectives with similar political stances, and opinions as theirs. Subsequently, this facilitates co-existence of heterogenous political opinions on an international level.
Increased competition between different regimes, courts, tribunals, and other juristic institutions promotes innovative and novel approaches to the development of international law. This enhances creativity and international law’s ability to solve problems, and suggest better solutions. Further, fragmentation allows international jurisprudence to combat the concentration of power. While the existence of multiple forums does have the propensity to favour bigger parties which have the resources to sufficiently manage these institutions, the very existence of a multitude of institutions prevents the abuse of power by introducing a system of checks and balances, translating to an increased threshold of accountability that is expected of different law-making institutions.
Fragmentation and the way forward
A number of scholars are of the belief that the “proliferation” of international dispute settlement institutions has the potential to develop greater variations in their determinations of general international law, thereby “destroying” the coherence of international legal systems. However, recent discussions have criticized such opinions for the hegemonic attempt to preserve the power of the ICJ.
The discussion in the earlier parts of this article has highlighted the benefits of jurisprudential pluralism in building an international law model. As the world is witness to greater development, there is an increasing need to build inclusive and progressive legal systems which allow every nation to have an equal opportunity to express its political opinion, and associate itself with rules and regulations which are in line with its culture and justice paradigm. This will only be possible if pluralism or fragmentation is accepted as a means to a brighter future.
Instead of perceiving fragmentation of law as a problem, it is necessary that we view it as a continuous process taking place as legal systems around the world evolve to address all relevant concerns within a particular jurisprudence. The problems historically associated with fragmentation are issues arising out of the diversification of international law in the absence of heed being paid to parallel jurisprudence and legal systems. If fragmentation, or pluralism is implemented in a systematic way, it would be possible to prevent issues such as conflict or uncertainty of law across different jurisdictions, which building a paradigm that allows for greater diversity, and democratization of international law.
It is thus established that fragmentation of law can be beneficial to the development and growth of international law, if managed properly. A number of models can be adopted to allow for the management of such diversification of law. Firstly, giving higher priority to special law over general law is a method that allows institutions to deliver decisions which are more specific, relevant, and in line with the background, and context of the dispute and the parties concerning the same. Such priority afforded to special law allows the model itself to gain greater legitimacy as special laws are tailored for the regulation of an issue, and are generally better equipped to address them. Secondly, the fragmentation of international law could be better managed if courts, tribunals, and other institutions around the world showcased a higher threshold of cognizance, and awareness of the parallel jurisprudences in other parts of the globe. This would prevent different institutions from functioning in exclusive jurisprudential vacuums, while simultaneously ensuring that courts from different jurisdictions borrow laws, cases, and decisions from other countries to further develop their own jurisprudence. Lastly, the adoption of fixed choice-of-law procedures which systematically allow an institution to determine governing law, regulation, or principles vis-à-vis a particular issue would greatly facilitate the necessary streamlining of international law while encouraging pluralism, and limited fragmentation across the world.
 Anne-Charlotte Martineau, The debate on fragmentation of International Law (2016)
*Rudra Athray is a third year B.A.LLB student at West Bengal National University of Juridical Sciences, Kolkata