This panel was convened at 1:00 p.m., Thursday, March 24, by its moderator, Rudi Teitel of New York Law School, who introduced the panelists: George A. Bermann of Columbia Law School; Jacob Katz Cogan of the University of Cincinnati, College of Law; Nele MatzLuck of the Max Planck Institute for Comparative Public Law and International Law; Mario Prost of Keele University, School of Law; and Sahib Singh of Skadden Arps and the University of Vienna.
THE IDEA OF FRAGMENTATION
By Jacob Katz Cogan
Fragmentation is an idea, and like all ideas it has a history and a politics.
What do I mean when I say fragmentation is an idea?
In order for there to be fragmentation, there must be a baseline. In other words, fragmentation assumes some normal state of perceived uniformity regarding legal rules or institutional mechanisms for rule creation or rule enforcement. Fragmentation occurs when there is a deviation from the world that we imagine to be uniform--that is, a shift (or threatened shift) away from the established baseline to one in which additional rules and additional actors are relevant.
But, of course, there is no normal or absolute state of uniformity in law. There are always overlaps among rules and institutions, and there are also always established mechanisms for their reconciliation. What is normal about a legal system at any particular moment is constructed. Today's fragmented world is tomorrow's uniformity. Tomorrow's uniform world will itself, in time, fragment.
The idea of fragmentation, then, is, first, that we are moving away (or might move away) from some normal state of being (in which we are comfortable and with which we are familiar) and, second, that such movement is problematic.
Not surprisingly, because fragmentation is fundamentally about retaining the status quo, the language of fragmentation--the ways in which the issue is raised--is often one of worry or concern, if not fear.
From what I have said already, it is clear that the idea of fragmentation has a history.
Concerns about fragmentation arise at particular moments as a result of changes or threatened changes to established norms and procedures. Those concerns either result in the maintenance of the status quo or the creation of a new status quo in which what is new becomes normal, after which the cycle begins anew.
Not surprisingly, one would expect heightened concerns about fragmentation when there is doubt about the stability of the status quo, and one would in particular expect fears of fragmentation when a legal system is not a well-developed one. Sophisticated legal systems--if we can personify them--have confidence in their own abilities to grow, and consequently they worry less about the possible diminution in the authority of their established rules and institutions. It is precisely that dilution, though, that forms the core of fragmentation's concerns.
It is no wonder that the current round of concerns regarding the fragmentation of international law began in the 1990s. It was then that many sought to fulfill the promise of international law that had been suppressed during the Cold War. We had a weak international system that aspired to be something more. Fragmentation threatened the system-part of the international legal system, just as international law sought to transcend its prior limits.
Those who worried about fragmentation, of course, had an interest in maintaining the status quo--or, at least, the development of the law through their (as opposed to someone else's) institutions. Koskenniemi and Leino, in their well-known article Fragmentation of International Law? Postmodern Anxieties, (1) argued that the International Court of Justice (ICJ) Presidents who professed to desire coherence in international law were worried primarily about their privileged position in the inherited international legal system--a position and a system that was threatened by changes advocated by new interests and new institutions. Uniformity was the veil that cloaked in legitimacy the power and interests of certain privileged segments of the international community.
That's all to say--and this brings me to the third and final point--that fragmentation is not only an idea with a history, it also, necessarily, has a politics.
Fragmentation is the language in which competing groups argue about their relative power and the differing policies they seek to promote.
In this argument of the past twenty years, conservatives (meaning those who sought to maintain some imagined uniform general international law) have clearly lost. Indeed, they really had no chance. The facts had changed, and new legal regimes were required in order to solve new problems. In a decentralized system like that of international law, fragmentation, and its institutional counterpart "proliferation," were (and are) inevitable.
As a result, the current world is one of competition among laws and institutions. (2) To its credit, the ICJ, to return to that example, has responded to this new landscape by seeking to compete in the state-to-state dispute settlement marketplace. We do not see ICJ Presidents lamenting fragmentation so much anymore; instead, they seek greater funding from the UN General Assembly to hire law clerks and work to revise the Court's rules and practices in order to streamline its procedures.
But the triumph of diversity over uniformity, of competition over consistency, raises the question of values. Koskenniemi does not appear to be too worried about this. He seems to believe that it will all come out in the wash--it is all a matter of "debate," and conflicts will be decided on the "merits." (3) The International Law Commission's report appears to assume as much. (4)
We can celebrate the inclusiveness and "tolerance and pluralism" (5) that fragmentation brings, but that language suggests that there is no necessary baseline, no minimum standard imposed by international law. Fragmentation does not necessarily mean progress, however. This explains the increased desire to promote ideas such as jus cogens and erga omnes obligations, which, it is hoped, will serve as necessary (and preemptive) baselines. And it is also why strong claims are made for human rights or the community of international judges. The chair of our panel, welcoming fragmentation, has written that the "international legal order will resemble the messy, porous, multiple-value, and constituency politics of democratic pluralism, which is nevertheless underpinned by a more absolutist baseline commitment to the preservation of the human." (6)
I worry that that is too optimistic. To assume there will be a "baseline commitment to the preservation of the human" (though that would be nice) creates circularity. Baselines, as I noted at the beginning, are calls for uniformity, and it is uniformity from which pluralism departs. Do we believe in pluralism, or do we believe in baseline values? There will not always be conflict between those two goals, but sometimes there will.
There is, then, I am afraid, no escaping the dilemma of fragmentation. The creation and maintenance of international law is an ongoing process of decision. We may embrace the democratic politics of fragmentation, but at the same time we need to see to its limits when it comes to certain ideals. Vigilance regarding values is the price that international law pays for pluralism.
By Jacob Katz Cogan, Associate Professor of Law, University of Cincinnati College of Law; Visiting Associate Professor of Law, Vanderbilt University Law School (Spring 2011).
(1) Martti Koskenniemi & Paivi Leino, Fragmentation of International Law? Postmodern Anxieties...