Although fragmentation of international law is not a new phenomenon,29 its meaning has changed in accordance with the historical context since at least the 19th century, thereby changing the content of the debate on fragmentation.30
‘Fragmentation’ may not only refer to the splitting of international law into multiple normative and institutional islands31, but also to its original patchwork nature.32 Martti Koskenniemi and Anne-Charlotte Martineau remind us that this term implies a previous coherent and unified body of international law, of which only fragments can be found today:
Le débat sur la fragmentation se structure ainsi autour d’un jeu subtil entre l’unité et la diversité, ces deux éléments étant mis en relation de façon à privilégier le premier sur le second.33
Koskenniemi and Martineau picture fragmentation as a rhetorical tool elaborating a normative project. Over time, both those who have campaigned for a new international order, and those who have sought to defend the existing one against change, have used this instrument to pursue their interests.34 They thus invoke fragmentation ‘either as the
29 Martti Koskenniemi and Anne-Charlotte Martineau, ‘La Fragmentation du Droit International’ in David-Ménard, Monique (ed), Chaos, (Hermann 2013) 55. See, also, Joost Pauwelyn,
‘Fragmentation of International Law’ (Max Planck Encyclopedia of Public International Law,
September 2006) paras. 7-12 <
http://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e1406?prd=EPIL> accessed 05 August 2019.
30 Anne-Charlotte Martineau, ‘The Rhetoric of Fragmentation: Fear and Faith in International Law’
(2009) 22 Leiden Journal of International Law 1, 4: “Although its connotation has certainly changed over time (technically speaking, fragmentation has referred to the elaboration of highly detailed treaties, to the establishment of regional institutions, to the setting up of specialized jurisdictions, etc.), its denotation has remained the same: to invoke fragmentation is to invoke an image of chaos, explosion”.
31 The comparison with islands is made by Joost Pauwelyn. Joost Pauwelyn, ‘Bridging Fragmentation and Unity: International Law as a Universe of Inter-Connected Islands’ (2003-2004) 25 Mich. J.
Int’l L. 903.
32 Ahmed Maihou, ‘Le Droit International ou la Dialectique de la Rigueur et de la Flexibilité: Cours Général de Droit International’ Collected Courses of the Hague Academy of International Law (Brill|Nijhoff 2009), vol. 337, 95; Anne-Charlotte Martineau, ‘The Rhetoric of Fragmentation: Fear and Faith in International Law’ (2009) 22 Leiden Journal of International Law 1, 4; Martti Koskenniemi, ‘Report of the Study Group of the International Law Commission on Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law’
(International Law Commission, Document A/CN.4/L.682, 13 April 2006), 10-11
<www.repositoriocdpd.net:8080/bitstream/handle/123456789/676/Inf_KoskenniemiM_Fragmentati onInternationalLaw_2006.pdf?sequence=1> accessed 05 August 2019.
33 Martti Koskenniemi and Anne-Charlotte Martineau, ‘La Fragmentation du Droit International’ in David-Ménard, Monique (ed), Chaos (Hermann, 2013), 55. See also Gerhard Hafner, ‘ Pros and Cons Ensuing From Fragmentation of International Law’ (2003-2004) 25Mich. J. Int’l L. 849; Martti Koskenniemi, ‘Report of the Study Group of the International Law Commission on Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law’
(International Law Commission, Document A/CN.4/L.682, 13 April 2006) paras. 5-9.
<www.repositoriocdpd.net:8080/bitstream/handle/123456789/676/Inf_KoskenniemiM_Fragmentati onInternationalLaw_2006.pdf?sequence=1> accessed 05 August 2019.
34 Martti Koskenniemi and Anne-Charlotte Martineau, ‘La Fragmentation du Droit International’, in David-Ménard, Monique (ed), Chaos (Hermann 2013), 57: “On constate également que même si la
‘fragmentation‘ du droit a été invoquée à maintes reprises par les internationalistes, cela n’a jamais été fait pour exprimer une sorte d’anxiété postmoderne. Au contraire, la rhétorique de la fragmentation participe à l’élaboration d’un projet normatif: elle permet à celui qui l’invoque, soit de dénoncer le système dominant pour mieux souligner l’exigence impérative d’un nouvel ordre
prologue to unity or as a menace to unity’.35 It has been historically invoked either as a catalyst for a new or alternative law, or as a threat to the existing or declining law.36
According to Martineau, ‘over the last 150 years, international lawyers have had recourse to the language of fragmentation as an argument for criticism and contestation’.37 She chronicles that, at least since 1870, international scholars have debated fragmentation. Distinguishing six different historical periods, she demonstrates how the meaning of fragmentation in these debates has changed over time.
Between 1870 and 1914, reports Martineau, fragmentation was seen as a midway between an original starting point of few uniform, general international rules and the idealistic aspiration of universality. In this scenario, specialisation was looked at with favourable eyes, in the belief that more international rules would ultimately conduct to universalization. The focus of scholarship was thus on ‘how to transform particular law into universal law’38, and this was envisaged either through extracting universal principles from specialised treaties or through general treaties and codification.39
In the period between 1914 and 1925, the First World War prompted international scholars to perceive a failure on the part of international law to secure peace and prevent war. In this process, they identified rule specialisation as one factor to blame for causing war. Despite criticisms, creating a universal institution, the League of Nations, seemed the appropriate mechanism to counter it. Fragmentation, in this context, was to be overcome—replaced by an integrated, institutionalised global system. 40
Between 1925-1939, major scholars, such as Georges Scelle and Hans Kelsen, contributed to the development of a systemic view of international law. 41 They conceived of international law as a complete system, of which specialisation and regionalisation were normal features. Hence, any risks of fragmentation could be dealt with inside the system. However, this systemic view was not without criticism: Latin American scholars, especially Alejandro Álvarez, contested it and contended that fragmentation was ‘the only social reality’42, arguing that ‘only if
international, soit de dénoncer les changements en cours pour mieux maintenir l’organisation sociale en déclin. Dans les deux cas, la fragmentation dénonce un projet d’unité normative pour laisser la voie libre à un projet alternatif“. Elsewhere, Martineau affirms that “fragmentation is a powerful rhetoric with which to contest someone else’s project” : Anne-Charlotte Martineau, ‘The Rhetoric of Fragmentation: Fear and Faith in International Law’ (2009) 22 Leiden Journal of International Law 1, 3. See also Martti Koskenniemi and Päivi Leino, ‘Fragmentation in International Law? Postmodern Anxieties’ (2002) 15 Leiden Journal of International Law 553.
35 Anne-Charlotte Martineau, ‘The Rhetoric of Fragmentation: Fear and Faith in International Law’
(2009) 22 Leiden Journal of International Law 1, 9.
36 Martti Koskenniemi and Anne-Charlotte Martineau, ‘La Fragmentation du Droit International’, in David-Ménard, Monique (ed), Chaos (Hermann 2013), 55-56.
37 Anne-Charlotte Martineau, ‘The Rhetoric of Fragmentation: Fear and Faith in International Law’
(2009) 22 Leiden Journal of International Law 1, 2.
38 Anne-Charlotte Martineau, ‘The Rhetoric of Fragmentation: Fear and Faith in International Law’
(2009) 22 Leiden Journal of International Law 1, 10.
39 Anne-Charlotte Martineau, ‘The Rhetoric of Fragmentation: Fear and Faith in International Law’
(2009) 22 Leiden Journal of International Law 1, 10-11.
40 Anne-Charlotte Martineau, ‘The Rhetoric of Fragmentation: Fear and Faith in International Law’
(2009) 22 Leiden Journal of International Law 1, 11-13. See also Martti Koskenniemi and Anne-Charlotte Martineau, ‘La Fragmentation du Droit International’ in David-Ménard, Monique (ed), Chaos (Hermann 2013), 55-56.
41 Both developed systemic views of international law that led to monism with primacy of international law. Anne-Charlotte Martineau, ‘The Rhetoric of Fragmentation: Fear and Faith in International Law’ (2009) 22 Leiden Journal of International Law 1, 13-14.
42 Anne-Charlotte Martineau, ‘The Rhetoric of Fragmentation: Fear and Faith in International Law’
(2009) 22 Leiden Journal of International Law 1, 15.
international lawyers took into account regional laws would a universal cosmopolitan international law eventually emerge’.43 Although this remained a minority perspective in the field, the proximity of a new war increased the general fears of fragmentation therein.44
Martineau defines the next period, which began during the Second World War, in 1939, and lasted until 1960, as ‘the mirror of a divided world’.45 According to her, this epoch saw ‘a turn to legal pragmatism accompanied by a humanistic ethos’ which manifested itself, among other events, in the foundation of the United Nations (UN) and a concern with accommodating diversity. The Cold War and its politics were perceived as an impediment for international law to fulfil international aspirations. In addition, legal scholars viewed the ‘primitive or fragmented character of international law’ 46 as another factor responsible for the lack of progress in the field. Against this background, not only ‘the political state of affairs led to an increasing number of integrated treaty regimes (fragmented legislation)’, but also courts were rarely used.47 Thus, the UN’s specialized agencies, ‘with the help of anti-formal standards and soft law’, appeared as the means to pursue unity and effectiveness in international law.
Overall, the discipline was marked by the controversy between those who criticised the fact that international law was underdeveloped, fragmented and limited by politics - and thus should be reinforced - and those who saw this as the expected characteristic of international law, ‘because it was merely an instrument available to decision-makers (and not some sort of autonomous system binding upon them)’.48
In the years between 1960 and 1989, scholars once more began to see fragmentation as a positive phenomenon, connected to the pursuit of world unity. Martineau informs readers that initially, ‘the mainstream applauded fragmentation (now described as diversification), as it was serving the transition from traditional law to community law’.49 For them, even though contradiction might exist among different bodies of law, this did not compromise international law, but was rather part of a transition in the direction of cosmopolitan unity. In this scenario, treaties superseded custom as the main source of international law.50
Without challenging mainstream scholars in their advocacy for unity,51 other scholars, mostly from the Third World, pushed for greater use of UN resolutions. In this context, following the Declaration for the Establishment of a New Economic Order, adopted by the UN General
43 Anne-Charlotte Martineau, ‘The Rhetoric of Fragmentation: Fear and Faith in International Law’
(2009) 22 Leiden Journal of International Law 1, 15.
44 Anne-Charlotte Martineau, ‘The Rhetoric of Fragmentation: Fear and Faith in International Law’
(2009) 22 Leiden Journal of International Law 1, 13-17.
45 Anne-Charlotte Martineau, ‘The Rhetoric of Fragmentation: Fear and Faith in International Law’
(2009) 22 Leiden Journal of International Law 1, 17.
46 Anne-Charlotte Martineau, ‘The Rhetoric of Fragmentation: Fear and Faith in International Law’
(2009) 22 Leiden Journal of International Law 1, 18.
47 Anne-Charlotte Martineau, ‘The Rhetoric of Fragmentation: Fear and Faith in International Law’
(2009) 22 Leiden Journal of International Law 1, 19.
48 Anne-Charlotte Martineau, ‘The Rhetoric of Fragmentation: Fear and Faith in International Law’
(2009) 22 Leiden Journal of International Law 1, 18-20.
49 Anne-Charlotte Martineau, ‘The Rhetoric of Fragmentation: Fear and Faith in International Law’
(2009) 22 Leiden Journal of International Law 1, 21.
50 Anne-Charlotte Martineau, ‘The Rhetoric of Fragmentation: Fear and Faith in International Law’
(2009) 22 Leiden Journal of International Law 1, 21.
51 Martineau explains: ‘Third World scholars did not link argumentative patterns (such as unity/diversity) with political positions, but rather played with them in pursuing their specific project’. She adds: ‘It is striking that, in their protest, Third World scholars did not seize the language of fragmentation. They adopted a more conciliatory position: their aim was to reform international law and not radically to transform it’. Anne-Charlotte Martineau, ‘The Rhetoric of Fragmentation: Fear and Faith in International Law’ (2009) 22 Leiden Journal of International Law 1, 22-23.
Assembly in 1974, they pushed for a ‘New International Economic Order’, a body of proposals to advance the economic interests of developing countries. Consequently, mainstream scholars followed suit, embracing the idea of extending international law to new domains of social and economic cooperation, thus integrating other actors and mechanisms.
Against this background, Martineau notes that the human rights movement ‘emerged as a critique of classical international law’s failure to fulfil a desired social objective - to protect individuals’.52 She also points out to the use of ‘special mechanisms’, which ‘were seen as positively advancing non-traditional interests and giving effect to communal values’.53
In the 1980s, however, criticism arose against this vision of international law. Then, scholars denounced de-formalisation and the development of international law into independent regimes as threats to the coherence of international law. This criticism, however, did not resonate among mainstream scholars, who already had a project for a
‘new world order’. In this project, ‘the proliferation of tribunals, as well as rivalry and politics among judicial institutions, were seen in a positive light because they would challenge embedded biases and advance the cause of co-operative law’.54
Since 1989, the debate on fragmentation has centred on the proliferation of international regimes and also on the parallel multiplication of international courts and tribunals that originated from the mainstream enthusiasm of the preceding period.55 According to Joost Pauwelyn, ‘the end of the Cold War and the rise of global interdependence and international NGOs (…) exerted important pressure toward a more unitary view of international law’.56
International law has always been somehow fragmented, being constituted of different national systems giving origin to multiple and sometimes disparate bodies of rules. From this perspective, it has always had a fragmented structure and has never been coherent in the way domestic systems have. 57 Historical facts, however, have led international legal scholars to question or welcome such fragmented state of affairs, giving to the debate on fragmentation different connotations overtime.58 Fragmentation, nowadays, signifies the shattering of general international law due to the emergence of several distinct, specialised regimes, threatening coherence and legal security in the field and generating
52 Anne-Charlotte Martineau, ‘The Rhetoric of Fragmentation: Fear and Faith in International Law’
(2009) 22 Leiden Journal of International Law 1, 23.
53 Anne-Charlotte Martineau, ‘The Rhetoric of Fragmentation: Fear and Faith in International Law’
(2009) 22 Leiden Journal of International Law 1, 23.
54 Anne-Charlotte Martineau, ‘The Rhetoric of Fragmentation: Fear and Faith in International Law’
(2009) 22 Leiden Journal of International Law 1, 20-24.
55 For an account of the development of international dispute settlement and, especially, the creation of international courts and tribunals after World War II, see Johnatan L. Charney, ‘ Is International Law Threatened by Multiple International Tribunals?’, Collected Courses of the Hague Academy of International Law (Brill|Nijhoff 1998), vol. 271, 117-131; Bruno Simma, ‘ Fragmentation in a Positive Light’ (2003-2004) 25 Mich. J. Int’l L. 845, 846.
56 Joost Pauwelyn, ‘Bridging Fragmentation and Unity: International Law as a Universe of Inter-Connected Islands’ (2003-2004) 25Mich. J. Int’l L. 903, 904.
57 Martti Koskenniemi, ‘Report of the Study Group of the International Law Commission on Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law’ (International Law Commission, Document A/CN.4/L.682, 13 April 2006) para.
493 <www.repositoriocdpd.net:8080/bitstream/handle/123456789/676/Inf_KoskenniemiM_Fragmentati onInternationalLaw_2006.pdf?sequence=1> accessed 05 August 2019.
58 James Crawford, ‘Chance, Order, Change: The Course of International Law’, Collected Courses of the Hague Academy of International Law (Brill|Nijhoff 2013), vol. 365, 205-229. See also Ahmed Maihou, ‘ Le Droit International ou la Dialectique de la Rigueur et de la Flexibilité: Cours Général de Droit International’ Collected Courses of the Hague Academy of International Law, (Brill|Nijhoff 2009), vol. 337, 87-108.
discrimination in treatment among legal subjects.59 In a nutshell, the contemporary debate on fragmentation of international law relates to whether this ‘overdevelopment’ poses a threat to the effectiveness of international law in handling global problems.60