Other perspectives: toward unity

Some scholars place a higher value on unity and, as such, argue for constitutionalisation. Eyal Benvenisti and George Downs, for example, defending a constitutionalist project whose moral legitimacy must be discussed by the international community, argue that

the functional specialization and atomistic design of fragmentation are, at least in part, the product of a calculated effort on the part of powerful states to protect their dominance and discretion by creating a system that only they have the capacity to alter.

112 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.

484-485

<www.repositoriocdpd.net:8080/bitstream/handle/123456789/676/Inf_KoskenniemiM_Fragmentati onInternationalLaw_2006.pdf?sequence=1> accessed 05 August 2019.

113 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.

485

<www.repositoriocdpd.net:8080/bitstream/handle/123456789/676/Inf_KoskenniemiM_Fragmentati onInternationalLaw_2006.pdf?sequence=1> accessed 05 August 2019.

114 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.

492

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According to them, this procedure brings difficulties for weaker States to form coalitions ‘through cross-issue logrolling’ and imposes great costs on both judges and international bureaucrats whenever they seek to

‘rationalize the international system or to engage in bottom-up constitutional building’. Creating such difficulties, powerful States can maintain their dominance and discretion. ¹¹⁵

In a later work, both scholars affirmed:

Powerful state executives labor to maintain and even actively promote fragmentation because it enables them both to preserve their dominance in an era in which hierarchy is increasingly viewed as illegitimate and to break the rules opportunistically without seriously jeopardizing the system they have created.¹¹⁶

They suggest that more dialogue between national and international courts can counter such fragmentation and increase democracy and accountability that benefits a greater number of stakeholders.¹¹⁷

For Pemmaraju Sreenivasa Rao, the creation of several international tribunals is a positive fact and reveals a ‘growing maturity of international law’:¹¹⁸ ‘The judicial enforcement of international rights and obligations reduces arbitrariness and power plays in international relations.

Simultaneously, tribunals enhance respect for universal legal order.’¹¹⁹ Privileging normativity over consent, he believes in the emergence of an international community.¹²⁰ In his opinion, no factual evidence existed so far to ground concerns with fragmentation, which, he states, ‘presupposes some basic unity and integrity to the structure of international law’, which

‘attributes universality to the core content of international law’.¹²¹ Hence, Rao recommends that judges in international tribunals

should be conscious of the overarching international judicial system that is emerging, which they should creatively and energetically promote. Furthermore, judges must show good faith and exhibit respect, not only to their own previous holdings on a subject, but should show equal respect to the relevant holdings of other international tribunals in the interest of judicial harmony, certainty, and the predictability of law. In this respect judicial restraint and economy should play just as important a role as judicial activism plays to help bridge gaps in law. The ultimate justification for the existence of a diversity of international tribunals is to achieve unity of the international legal system, which is dedicated to justice and equity in international relations.¹²²

Interestingly, however, Rao also acknowledges that States still retain a ‘pivotal role’ in ‘building and maintaining the world public order’. According to Rao:

115 Eyal Benvenisti and George W. Downs, ‘The Empire’s New Clothes: Political Economy and the Fragmentation of International Law’ (2007) 60 Stanford Law Review.

116 Eyal Benvenisti and George W. Downs, Between Fragmentation and Democracy: The Role of National and International Courts (Kindle Edition, CUP 2017) 6.

117 Eyal Benvenisti and George W. Downs, Between Fragmentation and Democracy: The Role of National and International Courts (Kindle Edition, CUP 2017). See, especially, chapters 6 (6.2), 149-164, and 7 (7.6), 165-195.

118 Pemmaraju Sreenivasa Rao, “Multiple International Judicial Forums: A Reflection of the Growing Strength of International Law or Its Fragmentation?’ (2003-2004) 25 Mich. J. Int’l L., 930.

119 Pemmaraju Sreenivasa Rao, “Multiple International Judicial Forums: A Reflection of the Growing Strength of International Law or Its Fragmentation?’ (2003-2004) 25 Mich. J. Int’l L., 960.

120 Pemmaraju Sreenivasa Rao, “Multiple International Judicial Forums: A Reflection of the Growing Strength of International Law or Its Fragmentation?’ (2003-2004) 25 Mich. J. Int’l L., 943-4.

121 Pemmaraju Sreenivasa Rao, “Multiple International Judicial Forums: A Reflection of the Growing Strength of International Law or Its Fragmentation?’ (2003-2004) 25 Mich. J. Int’l L., 930.

122 Pemmaraju Sreenivasa Rao, “Multiple International Judicial Forums: A Reflection of the Growing Strength of International Law or Its Fragmentation?’ (2003-2004) 25 Mich. J. Int’l L., 961.

The emergence of international community interest need not be viewed as the end of the State’s pivotal role in building and maintaining the world public order. These changes only mean that the non-State actors can no longer be denied their due and direct role in shaping goals and values of the world public order. Even as we recognize this fact, it is important to remind ourselves that the main edifice for the structure of the international legal system is and continues to be treaties that States conclude and ratify. They, together with the customary process by which law continues to evolve, play a dominant role in the codification and progressive development of international law.

Mads Andenas, writing on the role of the International Court of Justice in tackling fragmentation, affirmed that the Court’s recent rulings indicate that it is at the centre of international law as a unified legal system. Within this perspective, he praised the Court’s citation of other international courts and tribunals’ rulings in its reasonings, ‘opening up for a dialogue across treaty regimes and other jurisdictions’.¹²³ This dialogue, says Andenas, can facilitate coherence and unity in the international legal system:

The other courts and international bodies in this relationship may respond by taking a closer account of international law and its fundamental principles in applying the treaty base they may have for their activities. International courts and other bodies are increasingly provided with the tools of applying international law and securing coherence and unity, with the ICJ having this as its main business.¹²⁴

In the area of international economic law, Ernst-Ulrich Petersmann, who has long argued for a constitutionalist approach in that realm, defends the idea of transnational constitutionalisation in the governance of international public goods, which include international economic rights, in a system of multilevel governance aimed at securing the rights of individuals.¹²⁵ In the same vein, Klaus Armingeon, Karolina Milewicz, Simone Peter and Anne Peters support the idea of fragmented constitutionalism, suggesting reforms for the development of the WTO system towards an increasingly constitutionalised one.¹²⁶

With regard to regional trade agreements and the multilateral trading system, Richard Baldwin and Theresa Carpenter show concerns with regionalisation, deeming it unfair and economically inefficient. ¹²⁷ Sungjoon Cho criticizes the fragmentation of the multilateral trading system, suggesting that

123 Mads Andenas, ‘Reassertion and Transformation of International Law’ in Mads Andenas and Eirik Bjorge (eds), A Farewell to Fragmentation: Reassertion and Convergence in International Law (Kindle Edition, CUP 2015) 568.

124 Mads Andenas, ‘Reassertion and Transformation of International Law’ in Mads Andenas and Eirik Bjorge (eds), A Farewell to Fragmentation: Reassertion and Convergence in International Law (Kindle Edition, CUP 2015), 568-9.

125 Ernst-Ulrich Petersmann, International Economic Law in the 21st Century: Constitutional Pluralism and Multilevel Governance of Interdependent Public Goods (Hart Publishing 2012). For a review on constitutionalism at the WTO, see Jeffrey L. Dunoff, ‘Constitutional Conceits: The WTO’s

“Constitution” and the Discipline of International Law”, (2006) 17(3) EJIL 647; Joel P.

Trachtmann, ‘The Constitutions of the WTO’ (2006) 17(3) EJIL 623. See also Deborah Cass, The Constitutionalization of the World Trade Organization: Legitimacy, Democracy and Community in the International Trading System (OUP 2005).

126 Klaus Armingeon; Karolina Milewicz; Simone Peter and Anne Peters, ‘ The Constitutionalisation of International Trade Law’ in Thomas Cottier and Delimatsis Panagiotis (eds), The Prospects of International Trade Regulation , From Fragmentation to Coherence (Kindle Edition, CUP 2011) 69.

127 Richard Baldwin and Theresa Carpenter, ‘Regionalism: moving from fragmentation towards coherence’ in Thomas Cottier and Delimatsis Panagiotis (eds), The Prospects of International Trade Regulation , From Fragmentation to Coherence (Kindle Edition, CUP 2011) 136.

any new configuration of regional trading blocs in the global system should be a federalistic one that guarantees a subtle constitutional balance between multilateral disciplines and regional flexibility.¹²⁸

The contradiction existing in the constitutional proposals make them rather utopic. Regarding Benvenisti and Downs, for example, despite the adequate criticism toward the difficulties that the current state of affairs impose to weaker States, it is difficult to grasp how the same States that, according to them, are willing to maintain a fragmented system because it serves their strategic interests best, would consent to a constitutional project constraining this very objective. In the same vein, Rao presents two views who seem difficult to reconcile: on one hand, there is an international community whose rights to directly shape ‘goals and values of the world public order’ must be acknowledged); on the other, States still ‘play a dominant role’ in the building of the ‘world public order’. If States play a dominant role, it is questionable whether the international community can directly shape the world public order, since this will depend on States’ consent. Moreover, if States have a pivotal and dominant role, international judges’ creativity to promote the emerging

‘international judicial system’ might be compromised by a lack of consent on their part.

In relation to constitutionalist proposals in the area of international economic law, it is difficult to grasp how the same States being accused of fleeing multilateralism would agree to such constitutional constraints.

Moreover, it cannot be forgotten that interests over different international public goods might conflict. In such cases, which interest must prevail might vary according to a number of circumstances. Consequently, unity might have to give way to diversity.¹²⁹