A Farewell to Fragmentation: Reassertion and Convergence in International Law

Abstract

The “fragmentation” of international law has been a topic of discussion among international lawyers for at least the last two decades. The increase in the number of international organizations, multilateral conventions, bilateral investment treaties, as well as the growth of international courts and tribunals has led to concerns that the coherence and unity of the international legal order would be destabilized. 1 International law, a discipline that has long confronted questions regarding its very legality and legitimacy, was faced with new questions of how to ensure that the legal order would not be pulled apart by competing and overlapping regimes of international law. 2 This “anxiety” 3 over fragmentation slowly waned, however, and the initial warnings over the potential collapse of the international legal order now seem overblown. Some accept that fragmentation is an inevitable aspect of a decentralized legal system, but argue that international law possesses the tools to manage such divergence. Others argue that the phenomenon has failed to materialize in practice, and that even if we can point to certain examples of fragmentation, these were isolated incidents rather than evidence of an overall pattern. A Farewell to Fragmentation: Reassertion and Convergence in International Law , a collected volume edited by Mads Andenas (University of Oslo) and Eirik Bjorge (University of Oxford) combines both of these arguments. The volume accepts that fragmentation is a part of a legal system, but argues that we are beginning to see a move in the opposite direction, towards “convergence” in international law, steered largely by the role of the International Court of Justice (ICJ) reasserting itself at the center of the international legal order. The book seeks to support this claim by providing a multitude of examples of the ICJ as the “centre of gravity,” exerting influence over the diverse regimes of international law. The editors set out in the Introduction that “[e]ven if fragmentation, and the fear of fragmentation, is the subject of a rich literature, there is still need for empirical study to understand the impact of fragmentation on the legal system of international law” (at 3). Farewell addresses this gap in the literature by providing evidence of convergence based on a thorough examination of both the ICJ and the various regimes of international law. The first part examines “the centre,” focusing first on the ICJ. Chapters by Judge Greenwood and Judge Cançado Trindade serve to set the scene with regard to fragmentation and unity in international law, before chapters by Vera Gowlland-Debbas and Sir Nigel Rodley focus on how the ICJ has dealt with international human rights law. Philippa Webb examines the factors that influence fragmentation and convergence in international courts, and identifies three common issues: the type of court; the area of law involved; and the procedural rules and practices of the court. Webb uncovers the underlying reasons why the ICJ has played a central role in promoting convergence, but also addresses the issues the court must face if it is to embrace its integrative role (at 168–169). The first part of the book then zooms outwards to the different “regimes” of international law, again with a particular emphasis on international human rights law. Dean Spielmann discusses the reception of ICJ case-law into the legal order of the European Court of Human Rights (ECtHR), while Magdalena Forowicz discusses some of the factors that will lead to the ECtHR taking into account international law and the jurisprudence of the ICJ in its legal reasoning. The second part of the book is a more eclectic discussion, examining the fragmentation phenomenon with regard to the sources of international law. It first looks at customary international law and jus cogens , before turning towards fragmentation and convergence with regard to treaty interpretation. By providing such rich evidence based on practice, Farewell makes an important contribution to the literature. The volume is strengthened by chapters that focus on the role of domestic courts. Veronika Fikfak’s chapter examining the links between the ICJ and domestic courts and Alexander Orakhelashvili’s chapter on state immunity in international and English law stand out in this regard. The book also examines issues that are often overlooked in the fragmentation debate. For example, Cameron Miles’ contribution uncovers how convergence and fragmentation also take place in the field of procedural law, examining the law of provisional measures, drawing from a deep well of legal research. The book is clearly structured in a way that allows the overall argument to develop. Yet the individual chapters have not been overly edited so as to lose the various voices and opinions of the contributors. Given the book’s breadth, this review does not examine the specific claims made in the various chapters. Rather, it will seek to address the broader methodological questions and the study of fragmentation more generally. The phenomenon of the fragmentation of international law might be broader than what Farewell suggests. The Introduction sets out three forms of fragmentation. Substantive fragmentation occurs where different disciplines of international law claim to be self-contained, “autonomous” regimes. Institutional fragmentation stems from the proliferation of courts and tribunals without any institutional hierarchy existing among them. Methodological fragmentation relates to the sources of international law, and takes place when international courts seek to deal with these sources in a special way, often justified by the specific nature of the treaty or legal regime. These three forms of fragmentation all relate to one specific aspect of fragmentation: the interpretation and application of the law. The volume addresses the problems that arise due to the fact that the international system lacks a central body to interpret the law (although the editors argue that the ICJ is well placed to play such a role). The other source of fragmentation stems from the fact that there is no central lawmaker . Given that there is no central legislative authority in the international system, international law comprises a variety of overlapping, and at times contradictory, regimes. While the proliferation of courts and tribunals may have been an initial reason for fears of fragmentation, it really stems from the dispersal of norms among different fields of international law, through the proliferation of treaties, UN Security Council resolutions, and a variety of “soft law” instruments that these multiple courts have been called upon to interpret. Fragmentation was also fueled by the status of new types of actors in this system, including non-governmental organizations (NGOs), multinational corporations, as well as various types of international lawmaking bodies such as international organizations. This growth in specialized fields of law, developed and applied by a range of actors, was a byproduct of political changes, globalization, and the increasing complexity of international problems. In Farewell , fragmentation is presented as a technical issue related to the practice of courts, and the political and other factors that led to such a process are missing. By focusing predominantly on courts, the volume addresses only one aspect of the wider fragmentation debate. The volume puts forward a convergence thesis, arguing that the ICJ, as the “center” of the international legal order is capable of reasserting convergence in international law. The fragmentation literature has long discussed the proper role of the ICJ in the context of fragmentation, including various proposals for the International Court to be the primus inter pares of all international courts and tribunals. 4 Yet it should be recognized that convergence is but one of the tools that have been put forward as a method of addressing the negative elements of fragmentation. There is rich debate about constitutionalization, 5 legal pluralism, 6 “regime interaction,” 7 and normative hierarchy, all of which have also been discussed as possible ways through which fragmentation might be addressed. While Farewell intends to present the empirical evidence of fragmentation and convergence, it does not situate the convergence thesis within this wider theoretical discussion. From a methodological point of view, the editors do not explain why the ICJ was chosen as the topic of the study. Why are regional human rights courts and bodies, also discussed extensively throughout the volume, viewed as “regimes” of international law, when they could also have been viewed as nodes in a decentralized system of international law? By choosing to focus on the ICJ, it seems to be a foregone conclusion that we will see it as the center, rather than one of many “centers of gravity” around which convergence might take place. Just as our ancestors looked up at the stars and confidently concluded the Earth to be fixed and at the center of the universe, international lawyers might also mistakenly conclude that the International Court is the center of the international law universe. This makes it difficult to conceive of a different model, one in which all bodies exert an effect on one another and in which there is no “center.” It should also be questioned whether the ICJ is in the best position to act as a “center of gravity” in international law. Concerns over fragmentation first stemmed from the court itself. 8 It seems natural for lawyers to focus on courts, and with the ICJ as “the principal judicial organ of the United Nations,” 9 the court seems an obvious candidate for promoting convergence. Yet the UN Charter does not establish the ICJ as a constitutional court of the world community. It is established to resolve disputes before it. 10 While Farewell provides multiple examples of the ICJ promoting convergence in a number of fields of international law (an oft-cited example is its approach to jurisdictional immunities) this is not the court’s central role, and in some cases it may even abandon attempts at promoting coherence in favor of effectively resolving a specific dispute. Even when presented with an opportunity to provide clarity in key areas of international law, the court at times shows reluctance to deal with certain questions or defines its function narrowly, thereby limiting its role to promote convergence. 11 The court has general jurisdiction, but it must rely on states to bring contentious and advisory proceedings before it, limiting its opportunities to play the convergence role. Given these constraints, the ICJ may not be in the best position to act as the “center” of the international legal order. Farewell does not address the idea that there may be other potential “centers” of the international legal order besides the ICJ. While this includes other international and regional courts, convergence can also come from other sources. There are many references throughout the volume to the work of the International Law Commission (ILC). While the ILC often relies on ICJ judgments, it can also play an independent role in promoting convergence, primarily by asserting that the international legal order is indeed a system . The ILC favors rules of general application, and has thereby shown a reluctance to develop specialized rules applicable to sub-systems of international law. 12 Other possible “centers” of the international legal order are the United Nations and its Charter, which have also been discussed in constitutional terms. 13 Even if convergence is taking place, there are a number of factors that may drive this. Without addressing fully these other sources, the central argument of the volume, that the ICJ is an engine behind convergence, is weakened. The central narrative of Farewell is that the unity of international law was threatened by fragmentation before a shift towards the “center” occurred. Fragmentation and convergence are therefore presented as diametrically opposed poles, “in a Hegelian dialectic process” (at 1). Judicial activity of a regional, domestic or international court can therefore only be conceptualized as moving in one of two directions: towards convergence or fragmentation. This does not allow us to conceive of activity that might simultaneously fragment and constitutionalize the international legal order. A court may, for example, contribute to methodological fragmentation by interpreting a term in a way that diverges from the practice of other courts, but may do so in a way that respects the methods and sources of international law, contributing to convergence. There appears to be no common understanding across the various chapters as to what should be viewed as examples of fragmentation or convergence. For instance, examples of courts and tribunals referring to each other’s case-law, especially the citation of ICJ judgments by regional and domestic courts, is often presented as an example of convergence. Yet this is not necessarily indicative of convergence. Courts may choose to cite these judgments selectively, only mentioning ICJ judgments where they align with the opinion of the citing court. Various judgments that could have steered it in the other direction may have been omitted. Even more troubling, courts may cite ICJ judgments simply to lend authority to their decisions, but may misinterpret them or apply them in a unique way, thus giving the appearance of convergence when fragmentation is really taking place under the surface. Some chapters rely heavily on citations of other courts as examples of convergence without assessing the real influence the cited judgments had in a given case. While such “judicial dialogue” is welcomed, it should not be adduced as evidence of convergence on all occasions. 14 Another example of this inconsistency is the way in which examples of fragmentation are explained away or deemed as unimportant. Sir Christopher Greenwood, for instance, argues that “the difference of views over MFN clauses and jurisdiction is best seen as one of those issues which arise from time to time in any legal system” (at 54). Regarding the law of provisional measures, Cameron Miles argues, “[a]ny deviations tend to be based on the exigencies of the constitutive instrument” (at 268). In relation to the Sarrazin15 decision of the Committee on the Elimination of Racial Discrimination (CERD), an apparent example of fragmentation in human rights law, Mehrdad Payandeh argues that this can be explained by the “institutional logic” and “structural bias” of the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) (at 318). Here the contributors have identified examples of potential fragmentation but have subsequently downplayed their relevance. This is not to argue that the editors and contributors chose their examples selectively. Rather it demonstrates an inherent difficulty of conceptualizing fragmentation. One might view the action of a court as an example of either convergence or fragmentation. For example, a “unique” interpretation by a court might be viewed as justified as an application of Article 31(1) of the 1969 Vienna Convention on the Law of Treaties, stating that a treaty is to be interpreted in “context and in the light of its object and purpose.” 16 Yet one may view the very same interpretation and conclude that the court failed to apply Art. 31(2)(c), which allows recourse to “[a]ny relevant rules of international law applicable in the relations between the parties”. When is a court ignoring decisions of other courts and bodies in an isolated fashion, and when is it simply applying the law faithfully in a way that is consistent with the object and purpose of the treaty? Answers to these questions become dependent on whom you ask. 17 Without this methodological rigor, the study of fragmentation itself may be becoming fragmented. As much as Farewell seeks to provide empirical evidence of fragmentation or convergence, its claim that international law is a legal system and that the ICJ has played a role in ensuring the coherence and unity of that system, has a normative element. It fits within a line of scholarship that tends to present fragmentation as an overall negative phenomenon, one that should be addressed and managed through legal techniques. It tends to assume that a move towards greater convergence is a desirable aim in international law, but this normative claim is never fully elaborated upon. Consistency and coherence are not in themselves desirable objectives. The volume tends to overlook arguments that the international legal order might be strengthened and preserved by the development of “regimes.” While they might contribute to fragmentation, such courts can also be seen as moving the law forward. Special regimes of international law, rather than undermining the unity of the legal order, may allow instead for more specialized and adapted rules that are more likely to be complied with and easier to enforce. Rather than having any international court “at the center,” there are benefits of having multiple interacting courts, borrowing from one another, competing with each other, never placing the responsibility for the coherence of the legal order in the hands of one judicial body. Farewell examines the process of convergence in a serious and systematic way, grounding its conceptual arguments in the empirical work of international and regional courts. The book provides what is clearly missing in the fragmentation debate, that is, empirical evidence from the practice of courts and tribunals demonstrating the processes through which fragmentation and convergence occur. Farewell also succeeds in doing something that few multi-contributor volumes in law are able to achieve, that is, to construct a clear argument that runs throughout the entire book. The editors advanced a hypothesis and structured the chapters in such a way so as to allow for this argument to be developed through the course of the volume. Each chapter can be read as a standalone contribution, yet the book should be read as a monograph in order to view the development of the argument. The volume strikes the balance between presenting a logical and well-structured thesis while also retaining the individual voices. There are clear benefits to this book being written in this way, rather than a single-authored monograph. The book is strengthened by the fact that it brings together established scholars and practitioners with new voices who come with specialized expertise. These different voices do not always sing to the same tune, however. Sometimes they overlap, sometimes they contradict one another, and sometimes they seem to go off on a tangent. Yet Farewell benefits from this diversity of themes, methods, approaches, and styles.