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.

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.

scholarly journals The new international legal order and new states in the Balkans

2006 ◽  
Vol 58 (3) ◽  
pp. 272-293 ◽  
Author(s):  
Dusko Dimitrijevic
Keyword(s):  
International Law ◽  
Essential Role ◽  
Legal Order ◽  
State Behavior ◽  
The Balkans ◽  
Starting Point ◽  
New States ◽  
International Legal Order ◽  
The One ◽  
Further Development

In this study the author attaches a great importance to the theoretical examination of the concept of the New International Legal Order that was embodied in the last decades of the 20th century. The starting point for that reflection is the dissolution of the SFR Yugoslavia that illustrates one of the fundamental legal precedents. Reminding that the basic principle for the post-modern State behavior must be the one that includes minimal disturbance of the existing international legal relations, the author stresses that "the Yugoslav case" was customized in the way to respond to the new reality where the principle of effectiveness played an essential role in valuation of the statehood. It could also be one of the greatest catalysts for all further 'development rules' of international law.

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.

Francisco Suárez S.J. on the End of Peaceful Order among States and Systematic Doctrinal Scholarship

2017 ◽  
Author(s):  
Tobias Schaffner
Keyword(s):  
International Law ◽  
Practical Reasoning ◽  
Legal Reasoning ◽  
Legal Order ◽  
State Action ◽  
Peace And Justice ◽  
Starting Point ◽  
International Legal Order ◽  
Francisco Suarez

This chapter argues that the work of Suárez, like that of other theologians and natural lawyers, offers an insightful (albeit imperfect) articulation of the values of peace and justice which continue to underpin the international legal order. Suárez reminds us that the practical reasoning of all upright statesmen, citizens, and lawyers is guided by the idea of a peaceful and just order among states. Peace and justice are potentialities which individuals and whole nations can establish and preserve, as well as fail to establish or preserve, through their co-ordinated actions. His work remains insightful precisely because most of today’s accounts of international law neglect the role of peace and justice as a starting point of legal reasoning, a goal of state action, and even a source of international law.

Trialogical Subsidiarity in International and Comparative Law: Engagement with International Treaties by Sub-State Entities as Resistance or Innovation

2018 ◽  
Vol 55 ◽  
pp. 1-32
Author(s):  
LUCAS LIXINSKI
Keyword(s):  
International Law ◽  
Comparative Law ◽  
Legal Order ◽  
International Treaties ◽  
Central State ◽  
Law Of Peoples ◽  
Federal States ◽  
International Legal Order ◽  
Local Law

AbstractThis article proposes a new model for the engagement of sub-state units with the international legal order. “Trialogical subsidiarity” acknowledges that some areas are best regulated locally, but it also argues that international law has an increasing say in areas traditionally reserved for local law. The implementation of an international cultural heritage treaty by constituent units (CUs) in federal states, despite objections of the federal authorities, is a case study for the possibilities and implications of the use of international law by CUs without the filtering of the central state. This use enhances the legitimacy of international law and can lead to better outcomes for local populations, moving international law closer to its promise of being a law of peoples rather than of states.

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.

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.

scholarly journals Choice and (the Awareness of) its Consequences: The ICJ's “Structural Bias” Strikes Again in the Marshall Islands Case

AJIL Unbound ◽  
2017 ◽  
Vol 111 ◽  
pp. 81-87 ◽  
Author(s):  
Andrea Bianchi
Keyword(s):  
International Law ◽  
Nuclear Weapons ◽  
Third Parties ◽  
Legal Order ◽  
Marshall Islands ◽  
Young Researcher ◽  
International Treaty ◽  
Rubber Stamp ◽  
International Legal Order ◽  
State Of Affairs

My very first publication, admittedly written in a language that many AJIL Unbound readers might be unable or unwilling to read, was an essay on the Treaty on the Non-Proliferation of Nuclear Weapons (NPT) and its effects vis-à-vis third parties. Already back then, I found it difficult to justify how an international treaty could rubber-stamp such a highly uneven state of affairs. The overt acknowledgement of the discrimination between nuclear and nonnuclear states, the hypocrisy about “unofficial” nuclear states, and the Article VI obligation for nuclear states to negotiate effective measures of disarmament, largely ignored in the first twenty years of the treaty, were all elements that contributed to my perception of unfairness, if not blatant injustice. As a young researcher approaching international law with the enthusiasm of the neophyte, however, this looked like a little anomaly in an otherwise fair and equitable international legal order. It did not set off warning bells about the system as such. After all, international law was geared, at least in my eyes, towards enhancing the wellbeing of humanity. It must have been so. And it is not that I leaned particularly on the idealistic side; it seemed normal to me … at the time.

Precedent, Compliance, and Change in Customary International Law: An Explanatory Theory

2014 ◽  
Vol 108 (3) ◽  
pp. 389-434 ◽  
Author(s):  
Pierre-Hugues Verdier ◽  
Erik Voeten
Keyword(s):  
International Law ◽  
Legal Order ◽  
Explanatory Theory ◽  
State Behavior ◽  
Customary International Law ◽  
The Social ◽  
International Legal Order ◽  
Social Scientific ◽  
Vital Element ◽  
Affect State

Customary international law (CIL) is widely recognized as a fundamental source of international law. While its continued significance in the age of treaties was once contested, it is now generally accepted that CIL remains a vital element of the international legal order. Yet CIL is also plagued with conceptual and practical difficulties, which have led critics to challenge its coherence and legitimacy. In particular, critics of CIL have argued that it does not meaningfully affect state behavior. Traditional CIL scholarship is ill equipped to answer such criticism because its objectives are doctrinal or normative—namely, to identify, interpret, and apply CIL rules, or to argue for desirable changes in CIL. For the most part, that scholarship does not propose an explanatory theory in the social scientific sense, which would articulate how CIL works, why states comply, and why and how rules change.

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