Farewell to the f-word? fragmentation of international law in times of the COVID-19 pandemic

2021 ◽  
pp. e20210007
Author(s):  
Sivan Shlomo Agon
Keyword(s):  
International Law ◽  
International Organizations ◽  
Legal Order ◽  
Test Case ◽  
International Courts ◽  
Post Cold War ◽  
International Response ◽  
International Legal Order ◽  
Negative Impacts ◽  
Fragmentation Of International Law

The proliferation of international legal regimes, norms, and institutions in the post-Cold War era, known as the ‘fragmentation’ of international law, has sparked extensive debate among jurists. This debate has evolved as a dialectical process, seeing legal scholarship shifting from grave concern about fragmentation’s potentially negative impacts on the international legal order to a more optimistic view of the phenomenon, with recent literature suggesting that the tools needed to contain fragmentation’s ill-effects are today all at hand, thus arguing that the time has come ‘to bid farewell to the f-word.’ Drawing on the COVID-19 crisis as a test case and considering the unresolved problems in existing fragmentation literature that this crisis brings to the fore, this article asks whether such calls have perhaps been premature. Existing works on fragmentation, the article submits, including those bidding farewell to the f-word, have mainly focused on the problems of conflicts between international norms or international institutions, especially conflicts between international courts over competing jurisdictions and interpretations of law. But, as the COVID-19 case – and, particularly, the deficient cooperation marked between the numerous international organizations reacting to the crisis – shows, the fragmentation of the international legal order does not only give rise to the potential consequences of conflicts of norms and clashes between international courts. Fragmentation also gives rise to pressing challenges of coordination when a proactive and cohesive international response is required to address global problems like COVID-19, which cut across multiple international organizations playing critical roles in the creation, administration, and application of international law. By foregrounding cooperation between international organizations as a vital-yet-deficient form of governance under conditions of fragmentation, the article argues, the COVID-19 crisis not only denotes that the time is not yet ripe to bid farewell to the f-word. It further points to the need to expand the fragmentation debate, going beyond its conflict- and court-centred focus, while probing new tools for tackling unsettled problems that arise from the segmentation of international law along sectoral lines.

The Unsolved Riddle of International Constitutionalism

2010 ◽  
Vol 12 (1) ◽  
pp. 81-110
Author(s):  
Ignacio de la Rasilla del Moral
Keyword(s):  
International Law ◽  
International Organizations ◽  
Legal Order ◽  
Legal Doctrine ◽  
Cambridge University ◽  
Legal Norms ◽  
Recent Developments ◽  
International Legal Order ◽  
International Constitutionalism ◽  
Fragmentation Of International Law

AbstractThe extremely diverse contributions present in the volume edited by Nicholas Tsagourias, Transnational Constitutionalism: International Law and European Perspectives (Cambridge: Cambridge University Press, 2007, pp. 377) are contextualized through an exploration of some of the different strands of international legal doctrine that have been making use of the constitutionalist vernacular in recent years. These strands include among others, the growth in European Union-related constitutionalist discourse and the emergence of a transnational comparative legal realm at the cross-roads of the European and the international spheres; the historical lineage and the contemporary appeal of the constitutional vernacular in the field of international organizations; and the phenomenon of the fragmentation of international law along with the upholding, in reaction to that fragmentation, of a hierarchy of international legal norms. It also includes an examination of the emergence of alternative vocabularies that sustain a “fragmented/societal” model of constitutionalism on the basis of systems-theory as well as an examination of a constitutionalist value ridden perspective of the international legal order that, in mirroring recent developments, attempts to “restate” a classic teleologically conceived narrative of progress without yet leaving the realm of positivism. This article, which confronts “in fine” the “international community school” with its critics, does not aim to provide a complete deconstructed genealogy of each converging strand of doctrine that one might locate behind the current appeal of constitutionalist talk at the dawn of a post-hegemonic era. Yet it is hoped that it might serve as a reminder of the multifaceted factors that lie behind the contemporary renewal of the international constitutionalist arena and, thus, help to strengthen the latter’s potential as a benchmark for diagnosing the legitimacy deficit(s) of international law.

scholarly journals Die Zukunft des Völkerrechts

2017 ◽  
Vol 26 ◽  
pp. 3 ◽  
Author(s):  
Christian Tomuschat
Keyword(s):  
Human Rights ◽  
World War Ii ◽  
International Law ◽  
World Order ◽  
Legal Order ◽  
Positive Side ◽  
Normative Growth ◽  
International Legal Order ◽  
The Rich ◽  
Fragmentation Of International Law

The international legal order today constitutes a truly universal legal system. It has received guiding principles through the United Nations Charter: ever since this ‘Constitution for the world’ began operating, sovereign equality of states, self‑determination of peoples, and human rights have been key components of this architecture, which has reached a state of ‘conceptual unity’ belying the talk of ‘fragmentation’ of international law that so fascinated scholars in their debates only a short while ago. The great peace treaties of 1648, 1815, and 1919, as Euro‑centric instruments influenced by the interests of the dominant powers, could not bring about a peaceful world order. After World War II, it was, in particular, the inclusion of the newly independent states in the legislative processes that has conferred an unchallenged degree of legitimacy on international law. Regrettably, its effectiveness has not kept pace with its normative growth. Some islands of stability can be identified. On the positive side, one can note a growing trend to entrust the settlement of disputes to formal procedures. Yet the integration of human rights in international law – a step of moral advancement that proceeds from the simple recognition that, precisely in the interest of world peace, domains of domestic and international matters cannot be separated one from the other as neatly as postulated by the classic doctrine of international law – has placed enormous obstacles before international law. It must be expected that the demand for more justice on the part of developing nations will subject the international legal order to even greater strain in the near future. Currently, chances are low that the issue of migration from the poorer South to the ‘rich’ North can be resolved.

System Values and Understanding Legal Language

2008 ◽  
Vol 21 (1) ◽  
pp. 29-61 ◽  
Author(s):  
MAKSYMILIAN DEL MAR
Keyword(s):  
International Law ◽  
Legal Theory ◽  
Legal Order ◽  
Legal Language ◽  
International Legal Order ◽  
Institutional Contexts ◽  
International Law Commission ◽  
Fragmentation Of International Law ◽  
Law Commission ◽  
The Ideal

AbstractThis paper argues that the concerns and methodology of the recently completed Report of the International Law Commission (ILC) over the fragmentation of international law presuppose a particular way of understanding legal language which tends to separate the understanding of rules from their factual adaptability to certain recurring social problems faced within specific institutional contexts. The paper argues that separating rules from their factual adaptability focuses the analysis on surface coherence – coherence at the level of abstract terms and phrases. It is the argument of this paper that this presupposition is not warranted, and that the understanding of rules cannot be thus separated. An alternative model of the understanding of legal language is developed on the basis of the work of Bernard Jackson and Geoffrey Samuel. This is further supplemented by the approach to the study of institutional contexts in the recent work of Robert Summers and John Bell. Together, these resources can lead to the analysis of the deep coherence of the international legal order, that being one that prioritizes not the unity of that order, but its responsiveness. The ideal of responsive law is elaborated upon by reference to the work of Philip Selznick and Philippe Nonet. Finally, a different agenda for the ILC is offered on the basis of the methodology of deep coherence. The upshot is that the paper calls for a reorientation of international legal theory, away from concerns about ‘the law itself’ and towards an engagement with the responsiveness of legal work performed in international legal institutions.

scholarly journals Russia and International Law in 2000–2020: 100 Theses About Facts and Trends

2021 ◽  
Vol 9 (4) ◽  
pp. 4-32
Author(s):  
Vladislav Tolstykh ◽  
Aleksey Kudinov
Keyword(s):  
International Law ◽  
International Organizations ◽  
Legal Order ◽  
Customary Law ◽  
International Courts ◽  
Political Consequences ◽  
The Status ◽  
General Principles Of Law ◽  
Territorial Claims ◽  
Bilateral Treaties

The paper is an overview of the international legal stances of Russia, which were formed in the period from 2000 to 2020. The application of international law within the legal order of Russia is complicated by inconsistency of the Russian monistic concept, unclear status of customary law and general principles of law; lack of a developed judicial tradition. The Russia’s treaty policy comprises wide participation in general U.N. treaties, as well as bilateral treaties in the field of economic cooperation and legal assistance; unwillingness to participate in treaties, if this may entail negative political consequences. Russia backs down from some minor territorial claims in order to ensure stability; in some cases, she does not formulate a clear legal stance, limiting herself to political statements; she refuses to use judicial mechanisms, preferring bilateral negotiations and/or maintaining the status quo, and does not make efforts to create coalitions that support its claims. Russia uses international organizations rather as political fora, and not as a mechanism to create new legal order; she often takes a passive position when considering issues that do not affect its interests; she makes efforts to use the U.N. mechanisms, but sometimes lacks allies and trust from other members of international community. Russia recognizes the jurisdiction of international courts, but takes a passive position by rarely filing suits, objecting to jurisdiction and refusing to participate in the proceedings. The postSoviet international courts are politicized and do not make a serious contribution to the development of integration law. Russian doctrine is experiencing a serious crisis, which is caused by various reasons and can hardly be overcome by the efforts of the corporation itself

The conflict between values and hegemony in the current international legal order: humanitarian intervention as an example

2008 ◽  
Vol 1 (4) ◽  
pp. 573-588
Author(s):  
Mohammad Khalil al-Mousa
Keyword(s):  
International Law ◽  
International Organizations ◽  
Humanitarian Intervention ◽  
Legal Order ◽  
The Political ◽  
Legal Basis ◽  
International Court Of Justice ◽  
Court Of Justice ◽  
International Court ◽  
International Legal Order

In a study which proceeds along the lines of both philosophy and international law and established precedents of various international organizations and conventions, the author deals with the thorny issue of ‘human rights intervention’ and demonstrates that what may be a simple or self-reflexive concept in the abstract is, from the standpoint of actual historical implementation, problematic and extremely political. The article deals with cases from the Congo to Kosovo and examines these in light of the UN Charter as well as the International Court of Justice in order to demonstrate asymmetry and the ambiguities and contradictions as well as the political expedience inherent in both interpretation of law and in the actual cases of ‘humanitarian intervention’. The legal basis and efficacy of unilateral ‘humanitarian intervention’ are challenged in depth.

7. International Organizations

2020 ◽  
pp. 140-155
Author(s):  
Paola Gaeta ◽  
Jorge E. Viñuales ◽  
Salvatore Zappalà
Keyword(s):  
International Law ◽  
International Organizations ◽  
Legal Order ◽  
Legal Personality ◽  
Different Types ◽  
International Legal Order ◽  
International Legal Personality ◽  
Over Time

This chapter discusses the international legal personality of international organizations, illustrating the origins of the phenomenon, the evolution of such organizations over time, and the different types of organization. It goes on to consider the source and scope of their status and powers within the international legal order, inter alia, by focusing on the principle of speciality (or conferral) and the theory of implied powers. The chapter then deals with the problem of the recognition of immunities of international organizations and their personnel, as well as with the debate surrounding the rules which relate to their responsibility under international law.

scholarly journals FRAGMENTATION OF INTERNATIONAL LAW AS A FACTOR OF FORMATION OF THE MODERN INTERNATIONAL LAW ORDER

2021 ◽  
Vol 1 (2) ◽  
Author(s):  
Anastasiia O. Perfilieva ◽  
Keyword(s):  
International Law ◽  
Regional Integration ◽  
Legal Order ◽  
International Treaties ◽  
Regional Aspect ◽  
International Environment ◽  
Starting Point ◽  
International Legal Order ◽  
Fragmentation Of International Law ◽  
Current Stage

The article is devoted to the peculiarities of the formation of the international legal order in the process of evolution of international law. The development of international law is directly determined by the specifics of civilizational development and changes that occur in the international environment under the influence of globalization and regionalization. Globalization and regionalization are manifested respectively in the processes of unification and fragmentation of international law, becoming the content of the specifics of the processes in international legal relations at the current stage. The analysis of modern international legal relations, formed as a result of the principles and norms of international law in the context of globalization and regionalization, gives grounds to identify the manifestations of localization in international legal relations as a model of fragmentation of international law. The concept of fragmentation enters the science of international law at the beginning of the XXI century. Thanks to the discourse initiated by the UN Commission on International Law and is gradually gaining paradigmatic significance. Paradigmatic transformations of the science of international law are inevitable in the conditions of intensive development of international legal relations and provide further progress of science. The starting point of this process was the rejection of the unequivocally negativism interpretation of fragmentation as the opposite of integration and unification, which contradicts globalization. Therefore, today, in addition to the widely developed general international treaty and legal unification of domestic law, its regional unification is becoming more and more developed. Regional unification is also international, but it has a regional aspect, primarily related to the level of regional interstate integration. Integration practices are reflected in the relevant international treaties, especially those governing the establishment and operation of regional international associations. These associations are the organizational and legal shell for the development of regional international legal unification processes. Regionalization of international law, as well as its fragmentation in treatyformed international regions, is associated with the level and depth of relevant regional integration, which is a priority for states, and international law provides integration processes as a necessary tool for their regulation. Fragmentation is a natural process in the evolution of international law and is seen as a factor in the creation of modern international law. The international legal order has a contractual nature and a complex multicomponent structure. The process of forming the structure of the international legal order on the basis of a complex intertwining of uneven processes of regionalization and fragmentation is not yet complete. In the doctrine of international law, the complexity of the international legal order is determined from the standpoint of the number of elements and components, as well as their number and the relationship between them and the environment in which the legal order exists. It is obvious that the current stage of civilizational development is characterized by complexity and multidimensionality, which are reflected in the practices of creating a new international legal order based on the changes taking place in international legal relations. Therefore, fragmentation as a factor in the development of international legal relations becomes a factor in the formation of modern international legal order and determines its features.

The Fifty-Sixth Session of the International Law Commission

2005 ◽  
Vol 99 (1) ◽  
pp. 211-221 ◽  
Author(s):  
Michael J. Matheson
Keyword(s):  
International Law ◽  
International Organizations ◽  
Armed Conflict ◽  
Diplomatic Protection ◽  
Sixth Session ◽  
International Liability ◽  
International Law Commission ◽  
Fragmentation Of International Law ◽  
Law Commission

The International Law Commission held its fifty-sixdi session in Geneva from May 3 to June 4, and from July 5 to August 6, 2004, under the chairmanship of Teodor Melescanu of Romania. The Commission completed its first reading of draft principles on international liability for transboundary harm and draft articles on diplomatic protection, which have now been submitted for comment by states with a view to their completion in 2006. The Commission also continued its work on reservations to treaties, responsibility of international organizations, unilateral acts of states, fragmentation of international law, and shared natural resources. In addition, the Commission decided to start work next year on the effect of armed conflict on treaties and the expulsion of aliens, and to recommend adding a new topic—the obligation to prosecute or extradite—to its long-term program. The following is a summary of where each topic stands and what issues are likely to be most prominent at the Commission's 2005 session.

China and International Adjudication

2021 ◽  
Author(s):  
Thomas S. Eder
Keyword(s):  
South China Sea ◽  
International Law ◽  
South China ◽  
Case Law ◽  
Comprehensive Analysis ◽  
Legal Order ◽  
Great Power ◽  
Law Of The Sea ◽  
International Legal Order ◽  
International Adjudication

China aims to become a “leader country” in international law that “guides” the international legal order. Delivering the first comprehensive analysis of case law and Chinese academic debates from 2002 to 2018, this book shows that gradually increased engagement with international adjudication is part of a broad effort to consolidate China’s economic and political gains, and regain great power status. It covers trade, investment, territorial and law of the sea matters – including the South China Sea disputes – and delineates a decades-long process between caution and ambition. Both in debate patterns and in actual engagement, this book finds remarkable similarities in all covered fields of law, merely the timetables differ.

Fragmentation of International Law Revisited: Insights, Good Practices, and Lessons to be Learned from the Case Law of the European Court of Human Rights

2015 ◽  
Vol 28 (4) ◽  
pp. 863-885 ◽  
Author(s):  
ADAMANTIA RACHOVITSA
Keyword(s):  
Human Rights ◽  
International Law ◽  
Case Law ◽  
European Convention ◽  
Vienna Convention ◽  
International Courts ◽  
Good Practices ◽  
European Court ◽  
Interpretation Process ◽  
Fragmentation Of International Law

AbstractThis article discusses the contribution of the European Court of Human Rights to mitigating difficulties arising from the fragmentation of international law. It argues that the Court's case law provides insights and good practices to be followed. First, the article furnishes evidence that the Court has developed an autonomous and distinct interpretative principle to construe the European Convention on Human Rights by taking other norms of international law into account. Second, it offers a blueprint of the methodology that the Court employs when engaging with external norms in the interpretation process. It analyses the Court's approach to subtle contextual differences between similar or identical international norms and its position towards the requirements of Article 31(3)(c) of the Vienna Convention on the Law of Treaties (VCLT). It concludes that international courts are developing innovative interpretative practices, which may not be strictly based on the letter of the VCLT.

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