Section II Fragmentation as a Matter of Perspective
A) The ILC Report
Following the establishment of a Study Group to address the growing concerns with a threat of incoherence in international law, the ILC issued
99 For a discussion on different concepts of ‘unity’, see Mario Prost, The Concept of Unity in Public International Law (Kindle Edition, Hart Publishing 2012). See also Anne-Charlotte Martineau, ‘The Rhetoric of Fragmentation: Fear and Faith in International Law’ (2009) 22 Leiden Journal of International Law 1; Christopher Greenwood, ‘Unity and Diversity in International Law’ in Mads Andenas and Eirik Bjorge (eds), A Farewell to Fragmentation, Reassertion and Convergence in International Law (Kindle Edition, CUP 2015) location 1147; Marjan Ajevski (ed), Fragmentation in International Human Rights Law: Beyond Conflicts of Law (Routledge, 2015).
100 Marjan Ajevski (ed), Fragmentation in International Human Rights Law: Beyond Conflicts of Law (Routledge, 2015).
101 Judith T. Irvine and Susan Gal, `Language Ideology and Linguistic Differentiation’ in Paul V.
Kroskrity (ed) Regimes of Language: Ideologies, Polities and Identities (School of American Research Press 2000) 35, 35.
102 For an extensive review of the literature on the topic, see Anne-Charlotte Martineau, Le Débat sur la Fragmentation du Droit International: Une Analyse Critique (Bruylant 2016).
a report on the subject in 2006. The ILC Report, as mentioned above, was finalized by Martti Koskenniemi.103
In the eyes of the ILC, coherence is a positive value. It is connected to legal security, predictability and non-discrimination between legal subjects. For this reason, concerns with fragmentation arise that threatens the idea of a coherent international legal system. However, pluralism is also a value of international law, which has been always formed by ‘plural sovereignties’.104
We live in a pluralist, diverse world, which is nevertheless highly integrated through the operation of several specialised regimes that have been created to manage distinct areas of international interaction. In this context, the ILC stated:
Fragmentation puts to question the coherence of international law. Coherence is valued positively owing to the connection it has with predictability and legal security. Moreover, only a coherent legal system treats legal subjects equally. Coherence is, however, a formal and abstract virtue. For a legal system that is regarded in some aspects as unjust or unworkable, no added value is brought by the fact of its being coherently so. Therefore, alongside coherence, pluralism should be understood as a constitutive value of the system. Indeed, in a world of plural sovereignties, this has always been so. 105
As mentioned above, the ILC approached fragmentation from a regime-oriented perspective, based on Luhmann’s systems theory.
Accordingly, it explained that
frequently specialized rules and rule-systems also emerge through intergovernmental cooperation and in particular with the assistance of (specialized) intergovernmental organizations.
The result is the emergence of regimes of international law that have their basis in multilateral treaties and acts of international organizations, specialized treaties and customary patterns that are tailored to the needs and interests of each network but rarely take account of the outside world. This is the background to the concern about fragmentation of international law: the rise of specialized rules and rule-systems that have no clear relationship to each other. Answers to legal questions become dependent on whom you ask, what rule-system is your focus on.106
103 For a more detailed account, see the ILC Report: 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) Introduction, paras. 1-4
<www.repositoriocdpd.net:8080/bitstream/handle/123456789/676/Inf_KoskenniemiM_Fragmentati onInternationalLaw_2006.pdf?sequence=1> accessed 05 August 2019
104 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.
491
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105 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.
491
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106 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.
482-483
The ILC Report focused on conflicts that might be caused by legal and institutional specialisation: ‘conflicts between rules or rule-systems, deviating institutional practices and, possibly, the loss of an overall perspective on the law’. 107 The Commission identified that, as a consequence of the ‘diversification and expansion of international law’, fragmentation can be related to institutional competencies or to substantive questions – ‘the splitting up of the law into highly specialized
‘boxes’ that claim relative autonomy from each other and from the general law’. Leaving the first manifestation aside, it examined the dangers of incoherence posed by the second one. The Commission pointed out that, if on one hand, ‘fragmentation does create the danger of conflicting and incompatible rules, principles, rule-systems and institutional practices’, on the other, ‘it reflects the rapid expansion of international legal activity into various new fields and the diversification of its objects and techniques’.
Even though the ILC Report offered a series of (systemic) techniques to deal with such conflicts, it questioned the idea that law is a system before a systemic effort is made108 and confers to legal interpretation the role to construe such system through ‘systemic thinking’ applying to legal reasoning. 109 According to the ILC Report, there is a ‘political obligation on law-appliers to make their decisions cohere with the preferences and expectations of the community whose law they administer’,110 either through conflict harmonization or, when this is not possible, through establishing priorities over conflicting norms.111
Moreover, the ILC Report concluded that it is not possible to establish prima facie priorities between different rules or rule-systems, and proposes that this has to be determined ad hoc:
such priorities cannot be justifiably attained by what is merely an elucidation of the process of legal reasoning. They should reflect the (political) preferences of international actors, above all States. Normative conflicts do not arise as technical
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107 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. 8
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108 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.
34
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109 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.
35
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110 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.
35, added emphasis
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111 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.
36
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‘mistakes’ that could be ‘avoided’ by a more sophisticated way of legal reasoning. New rules and legal regimes emerge as responses to new preferences, and sometimes out of conscious effort to deviate from preferences as they existed under old regimes. They require a legislative, not a legal-technical response. But the absence of general hierarchies in international law does not mean that normative conflicts would lead to legal paralysis. The relevant hierarchies must only be established ad hoc and with a view to resolving particular problems as they arise.112
The techniques discussed in the Report, therefore, are meant to help lawyers deal with such conflicts, which, according to the Commission, are
“endemic to international law”.113 They do not, however, offer an a priori solution to such conflicts, which depends on political choices or, as a matter of legal reasoning, can only be reached on a case-by-case basis.
Despite the potential conflicts generated by the proliferation of specialised regimes, the Commission reached the conclusion that “the emergence of special treaty-regimes…has not seriously undermined legal security, predictability or the equality of legal subjects”.114
Setting out from a perspective of international law as a fragmented reality, composed of diverse national systems and distinct specialised regimes, the ILC Report tried to offer solutions to accommodate such fragments. Nevertheless, it acknowledged that such accommodation requires political choices, legislative action. As a matter of legal theory, there can be no a priori solution and the accommodation can only happen on a case-by-case manner, through legal reasoning.
Furthermore, the ILC Report concluded that ‘fragmentation’ related to regime specialization did not pose a threat to coherence in international law. Hence, the ILC seems to have tried to find a way to accommodate diversity and unity.