Marcelo Dias Varella, Central Aspects of the Debate on the Complexity of International law

• Citation: Vol. 27 No. 1
• Publication year: 2010

CENTRAL ASPECTS OF THE DEBATE ON THE COMPLEXITY OF INTERNATIONAL LAW

Marcelo Dias Varella*

ABSTRACT

The way that actors create, implement, and control international law is far more complex today than it was thirty years ago. International law has become increasingly detailed and specific, as international relationships and transnational legal processes have become more complex. The distinction between national and international law is much less clear. States remain the primary actors, but there has been a multiplication and intensification of the role of sub-state and non-state actors. There is a continuous transformation of international law, by both public and private mechanisms, from the national to the international sphere and vice versa. The evolution of norms has also become increasingly dense. Any discussion in this arena must contend with new sources and new subjects of international law. This Recent Development presents three scholarly contributions to this discussion. First, this Recent Development analyzes new trends in the proliferation of norms, and how it impacts our understanding and application of international law. It reveals that: (1) there are multiple norms arising from new and old international institutions and systems of integration; (2) it is now possible to more readily integrate more states into the international legal system; and (3) international law now progressively supersedes domestic law in many areas. Second, this Recent Development proposes the possibility of new sources of international law including networks of judges, state agents, and private companies and other private actors. Subjects and participants must contend not only with international law, but also with private or hybrid legal systems, which are often autonomous of their host nation-states. International legal scholarship frequently neglects these sources, even if they are vital to certain legal subsystems, such as finance or monetary law. Third, this Recent Development examines and summarizes some of the more controversial ideas on international law today including: (1) global constitutionalism; (2) global democracy; (3) complexity; and (4) fragmentation in international law. The

* Visiting Scholar, Berkeley Law, University of California; Professor of Law, University Center of Brasília.

discussion illustrates the limitations of these concepts in the real world, and explores practical applications. This Recent Development surveys a spectrum of global perspectives on these issues, and references articles from doctrinal sources in a variety of countries including the United States, Germany, France, United Kingdom, Japan, and Brazil.

INTRODUCTION

International legal theory is undergoing a major transformation in response to globalization processes. The way that actors create, implement, and control international law is far more complex today than it was thirty years ago. There has been a corresponding intensification of the transnational legal process. The distinction between national and international law has become less clear. States continue to be the main actors in international law, but there has been a

multiplication and intensification of the role of sub-state and non-state actors.1

International law continuously traverses between the national and international spheres, through both public and private instruments. Meanwhile, the process through which norms evolve becomes increasingly dense. Therefore, international relations have simultaneously become much more rule-oriented.2

However, international legal subsystems3 such as international economic law (trade, finance, monetary), human rights law, humanitarian law, and environmental law have not been transformed in the same direction (rationale, rules of recognition, hierarchy) or at the same speed. International trade law has internationalized much faster than others, such as human rights or environmental law. Some states accept and participate in global integration

more intentionally and actively than others.4 Some authors suggest the idea of

“polychrony” in international law: differences in the “time” of each legal

1. FRANÇOIS OST & MICHEL VAN DE KERCHOVE, DE LA PYRAMIDE AU RESEAU. POUR UNE THEORIE DIALECTIQUE DU DROIT 43–45 (2002).

2. Harold Hongju Koh, The 1994 Roscoe Pound Lecture: Transnational Legal Process, 75 NEB. L. REV.

   181, 184 (1996).

3. The concept of “system” changes according to the theory. Some Italian, Spanish, and Portuguese authors use the definition of Norberto Bobbio, “ordenamento.” NORBERTO BOBBIO, POSITIVISMO JURÍDICO, LIÇÕES DE FILOSOFIA DO DIREITO 198–99 (1995). French authors prefer the expression “ordre juridique” (legal order). See id. Commentators in the Anglo-Saxon tradition use the term “legal system.” See, e.g., FRANÇOIS OST & MICHEL VAN DE KERCHOVE, LEGAL SYSTEM BETWEEN ORDER AND DISORDER ix–x (Iain Stewart trans.,

   Oxford University Press 1994). Most authors, including Kelsen, Hart, and Romano, use these terms as synonyms. See id. at 10. I will follow them.

4. OST & VAN DE KERCHOVE, supra note 3, at ix–x.

   
   

   subsystem create conflicts among them.5 A model once complicated (multiple and heterogeneous) becomes overwhelming and complex (interactive and unstable).6

   
   

   Many different issues related to the transformation of international law have consequences for the way that we understand it: the proliferation of norms, the creation of new sources and subjects of international law, the limits of some new meta ideas, global constitutionalism, global democracy, and complexity versus fragmentation of international legal systems. Each of these discussions is subject to intense debate and scholarly study nowadays, including courses at the Hague Academy of International Law and other

   important forums.7

   
   

   In this Recent Development, I discuss fundamental points on three important subjects. The first subject is the proliferation of norms, interpreted as the multiplication of treaties, customs, and the unilateral acts of international organizations and states. It is possible to integrate many more states into the international legal system, with many norms arising from new and old international organizations as well as the attribution of new capacities and competencies from the national to the international level. However, even if this integration is a clear process, it is impactful enough to change the way we understand international law. The legal framework of the World Trade

   Organization (“WTO”) is one example.8

   
   

   The second subject of this paper, which receives more debate and achieves less consensus, concerns the possibility of new sources of international law arising from judicial networks, state agents, and private networks.9 Actors must contend not only with international administrative law but also with private or

   hybrid legal regimes that are autonomous in relation to states. International law scholarship normally neglects this as a serious topic of study.10 However, in

   
   

5. MIREILLE DELMAS-MARTY, ORDERING PLURALISM 133–48 (Naomi Norberg trans., Hart Publishing 2009).

6. See id.

7. See, e.g., Hague Academy of International Law 2013: Programme of the 2013 Session, HAGUE ACAD., http://www.hagueacademy.nl/download/Poster_2013_EN.pdf (last visited Feb. 3, 2013).

8. See infra notes 71–78 and accompanying text.

9. The discussion of whether or not new sources of international law have been created has been presented by various authors. See, e.g., ONUMA YASUAKI, A TRANSCIVILIZATIONAL PERSPECTIVE ON INTERNATIONAL LAW: QUESTIONING PREVALENT COGNITIVE FRAMEWORKS IN THE EMERGING MULTI-POLAR

   AND MULTI-CIVILIZATION WORLD OF THE TWENTY-FIRST CENTURY (2010).

10. See, e.g., PIERRE-MARIE DUPUY, L’UNITE DE L’ORDRE JURIDIQUE INTERNATIONAL: COURS GENERAL DE DROIT INTERNATIONAL PUBLIC (2003).

    some legal subsystems, such as finance or monetary law, those new aspects are important to understanding how they work.

    
    

    The third subject of this paper is an analysis of the concepts of global constitutionalism, global democracy, and complexity versus fragmentation in international law. These are questions of faith more than questions of argumentation. The main issues are hierarchy, recognition, plurality, or complexity of norms and systems. Divergent discourses emerge from legal scholars in Europe, the United States, and Asia, with strong and contradictory

    arguments.11 We are far from consensus or from convincing arguments that

    stand up to critique.

    
    

    1. THE PROLIFERATION OF NORMS

       
       

       Areas previously regulated by national laws or left unregulated are now the objects of international law, regional systems of integration, international organizations, or the law of other national legal systems with extraterritorial effects. International and foreign themes have come to predominate over national subjects.

       
       

       There are four processes for the multiplication of norms—differing from traditional treaty-making processes—by which international law engages state actors: the inspiring influence of non-national law, the integrative influence of regional and global legal systems, the imperative influence of international law, and the extraterritorial influence of norms originating in powerful countries. These are discussed in the Subparts below.

       
       

       1. The Influence of Non-National Law

          
          

          States adopt similar legal solutions regardless of whether international actors prompt them to do so. They are influenced by a process of persuasion, not imposition. Some authors consider the phenomenon as a “normative intercrossing” or “cross-fertilization,” that is not only a set of similar national

          frameworks,12 but a way to build international law. There are three different

          modes of influence by which legal systems are transplanted from one

          
          

11. See, e.g., GUNTHER TEUBNER, CONSTITUTIONAL FRAGMENTS: SOCIETAL CONSTITUTIONALISM AND

    GLOBALIZATION (2012); YASUAKI, supra note 9; Armin Von Bogdandy, The European Lesson for International Democracy: The Significance of Articles 9–12 EU Treaty for International Organizations, 23 EUR. J. INT’L L. 315 (2012).

12. See, e.g., MIREILLE DELMAS-MARTY, LA REFONDATION DES...