Fragmentation of International Law? Postmodern Anxieties

Abstract

Successive ICJ Presidents have expressed concern about the proliferation of international tribunals and substantive fragmentation of international law. This is not a new phenomenon. International law has always lacked a clear normative and institutional hierarchy. The problem is more how new institutions have used international law to further new interests, especially those not predominant in traditional law. The anxiety among ICJ judges should be seen less as a concern for abstract “coherence” than a worry about the demise of traditional principles of diplomatic law and the Court's privileged role as their foremost representative. As jurisdictional conflicts reflect divergent political priorities, it is unclear that administrative co-ordination can eliminate them. This does not, however, warrant excessive worries over fragmentation; it is an institutional expression of political pluralism internationally.

Strengthening the Human Right to Sanitation as an Instrument for Inclusive Development

“…Legal pluralism could be de jure, where co-existing multiple legal orders and their linkages are formally recognised by the State, in order to enhance the efficiency and effectiveness of the formal justice system; (Quane, 2013) or de facto, where the State does not recognize nonstate or informal legal orders, but may implicitly allow their operation (Quane, 2013;McGoldrick, 2009). The literature investigates legal pluralism as the outcome of: (a) the historical evolution of legal systems (Farran, 2006) (Tamanaha, 2011;Twining, 2009); (c) fragmentation of the international legal order (Koskenniemi & Leino, 2002); sometimes distinguishing between legal pluralism occurring at the horizontal level (multiple rules operating within the same level of governance) and the vertical level (multiple rules operating across different levels of governance (Conti & Gupta, 2014;Obani & Gupta, 2014b).…”

Post-national (international) law at the end of history

“…To understand the concept of pluralism we have to imagine the world populated with a large number of entities: states, international regimes (Koskenniemi and Leino 2002, Simma and Pulkowski 2006, Young 2012, transnational organizations and networks, private-public partnerships etc. Some of these entities interact with other entities in the system some of the time, and they increasingly interact with each other in ways that connect multiple levels of organization: sub-state, national and international.…”

Global climate change and global groundwater law: their independent and pluralistic evolution and potential challenges

“…Legal pluralism (Von Benda Beckmann, 2001) refers to different rules emerging from (in) formal actors at varying governance levels applying to the same jurisdiction (Zips & Weilenmann, 2011). This can lead to contradictions, when multiple systems coexist, or fragmentation, when it evolves in a bottom-up manner or because top-down consensus reaches an impasse (Koskenniemi & Leino, 2002;Tamanaha, 2008). A politics of scale lens helps examine why states may or may not scale up an issue and its sub-parts to the global level (Gupta, 2008), while hydro-hegemony scholars further explain why and how powerful states use their power to control the shape of water agreements, their interpretations and their ratification (Mirumachi, 2015;Nicol & Cascão, 2011;Zeitoun & Allan, 2008).…”