The empire's new clothes: political economy and the fragmentation of international law.

• Author: Benvenisti, Eyal

INTRODUCTION I. THE EFFECTS OF FRAGMENTATION II. STRATEGIC COORDINATION IN THE DOMESTIC AND INTERNATIONAL CONTEXT III. FOUR FRAGMENTATION STRATEGIES 1. The Creation of a Large Number of Narrow, Functionally-Defined Agreements 2. Agreements Formulated in Specially Convened One-Time or Infrequently Convened Settings 3. Narrowly Circumscribing the Authority of Treaty-Based Agents 4. Threatening to Exit a Regime or Switching Regimes IV. COUNTERVAILING EFFORTS TO REDUCE THE FRAGMENTATION OF INTERNATIONAL LAW CONCLUSION INTRODUCTION

In recent years there has been a growing debate in international legal circles about the importance of what is termed "fragmentation": the increased proliferation of international regulatory institutions with overlapping jurisdictions and ambiguous boundaries. Practicing jurists, in particular, have expressed the concern that increasing the number of international courts will lead to forum shopping, create inconsistency within case law, and "may jeopardize the unity of international law and, as a consequence, its role in inter-State relations." (1) By contrast, academic international legal scholars have tended to dismiss such concerns. Some point out that, despite the appearance of fragmentation, regulatory coordination among institutions is now better than ever before as a result of the growth in informal, market-like coordination mechanisms such as networks of governmental organizations. Others argue that fragmentation is a largely harmless side effect of the "institutional expression of political pluralism internationally," (2) or of the increased demand for expertise in international institutions. (3) From this perspective, the ongoing competition among international regulatory institutions for jurisdiction and influence will ultimately be as beneficial for the international regulatory regime as the competition among political interests is for democracy.

In what follows, we argue that fragmentation is a more serious problem than either group suggests because it operates to sabotage the evolution of a more democratic and egalitarian international regulatory system and to undermine the normative integrity of international law. Fragmentation does this in three ways. First, it limits the ability of weaker states to engage in the logrolling that is necessary for them to bargain more effectively with more powerful states. Weaker actors are, in addition to being far more numerous, more institutionally, economically, and geographically diverse than powerful states, suggesting that their preferences are also more diverse. This diversity of preferences makes it more difficult for them to achieve a consensus on a particular issue. At the domestic level weaker actors often manage to overcome this problem by logrolling or trading votes across issues. However, logrolling requires a venue such as a legislature where policy decisions are made on a wide range of issues, which is rare at the international level.

To the extent that powerful parties are able to forestall the emergence of such multi-issue venues by creating a fragmented system of multiple, issue-specific treaties, they can preserve and even increase the bargaining advantages that they currently possess. (4) Decentralized mechanisms such as networks possess a host of virtues and are capable of greatly facilitating coordination among states within a given regulatory arena. However, as we shall see, they are not well suited to promoting coalition building across issues in a fragmented system.

Second, by creating a multitude of competing institutions with overlapping responsibilities, fragmentation provides powerful states with the opportunity to abandon--or threaten to abandon--any given venue for a more sympathetic venue if their demands are not met. This further exacerbates the competition between institutions and effectively marginalizes the role of weaker states, which do not enjoy the same leverage. This is not the kind of environment in which a bottom-up process of constitution making on the part of international tribunals is likely to thrive.

Third, a fragmented system's piecemeal character suggests an absence of design and obscures the role of intentionality. As a result, it is often considered to be solely the accidental byproduct of historical events and broad social forces. This has helped obscure the fact that fragmentation is in part the result of a calculated strategy by powerful states to create a legal order that both closely reflects their interests and that only they have the capacity to alter. (5) In recent years, as hierarchical strategies have become contested and delegitimized, powerful states have increasingly relied on fragmentation strategies as an alternative means of achieving the same end in a less visible and politically costly way. Historical contingency and the strategic self-interest of powerful states have long been intertwined in connection with fragmentation. The narrow, functionalist design of the institutions that the Allied Powers created during the 1930s and in the aftermath of WWII was, for the most part, an accident of history. The policy problems that they were designed to address (e.g., economic stabilization, collective security, containment) emerged at different times in connection with specific historical events, and each required a high degree of expertise that could be found only in the domestic bureaucracies of the Allied Powers that were themselves organized along functionalist lines. In such an environment it was natural to respond to problems in a piecemeal way and to repeat the process as new problems and issues emerged. To a considerable extent, fragmentation was unavoidable.

Yet even during this early stage in the international system's post-war development there were strategic considerations at work. Historical accounts of the period make it clear that the Western powers wanted to insulate key regulatory institutions, particularly economic ones, from the influence of other states, from the newly created United Nations, and from potential cross-contamination from other policy spheres. (6) Paul Kennedy's history of the UN suggests that the great powers selectively employed fragmentation from the outset to prevent the Economic and Social Council (ECOSOC) from competing with the Security Council for dominance and fostering the integration of security and economic policy. The great powers did nothing to facilitate the UN Charter's requirement that all of the various specialized agencies such as the International Monetary Fund, the International Labour Organization, and the Universal Postal Union were to be "brought into relationship" with the UN and coordinated through the ECOSOC. Instead, they chose to preside passively over a growing overlap and confusion among the UN's growing number of newly created bodies. (7)

In the intervening decades a host of new regulatory problems have emerged and numerous multilateral agreements and institutions have been created to deal with them. This has led to a growing number of jurisdictional disputes and mounting concerns about the international regulatory regime's lack of consistency and coherence that are the forerunners of the current preoccupation with fragmentation. In response, at each step along the way there have been frequent calls for better policy integration and coordination, and in recent years these calls have increasingly been accompanied by demands on the part of the developing states for better representation of their interests in key regulatory institutions.

Yet progress towards a more integrated and democratized international regulatory system and the redistribution of influence that it would entail has been virtually nonexistent. We believe that this lack of progress stems from the fact that the powerful states, particularly the United States, which have disproportionately shaped the international regulatory agenda, have chosen to rely on four strategies that have the effect of promoting fragmentation. These four "fragmentation strategies" include (1) avoiding broad, integrative agreements in favor of a large number of narrow agreements that are functionally defined; (2) formulating agreements in the context of one-time or infrequently convened multilateral negotiations; (3) avoiding whenever possible the creation of a bureaucracy or judiciary with significant, independent policymaking authority and circumscribing such authority when its creation is unavoidable; and (4) creating or shifting to an alternative venue when the original one becomes too responsive to the interests of weaker states and their agents.

These four strategies increase the transaction costs that weaker states have to pay to engage in the political coordination necessary to form a coalition that could more effectively bargain with their more powerful counterparts. The extensive archipelago of narrowly focused and poorly coordinated treaties and multilateral organizations that characterizes the international legal system, the slow rate with which international institutions have been democratized, and the lack of redistribution between North and South all testify to the impact that these strategies have had.

Weaker states and those bureaucrats and judges who staff international institutions have not remained completely passive as fragmentation has increased. They have occasionally attempted to resist it by developing countervailing or "anti-fragmentation" strategies. These strategies are designed to lower rather than raise the transaction costs associated with strategic coordination. They operate by increasing the repeated game aspects of the institutional context, expanding the independence and role of tribunals and the bureaucratic components of multilateral institutions, and creating linkages between agreements that can serve to create coalitions. The fact that these strategies are at least intermittently successful is supported by the growing...