Reassertion and transformation: from fragmentation to convergence in international law.

Author:Andenas, Mads
  1. THE INTERNATIONAL COURT AND THE PRESSING PROBLEMS OF FRAGMENTATION II. THE END OF FRAGMENTATION? III. THE THREE FORMS OF FRAGMENTATION A. Substantive Fragmentation B. Institutional Proliferation C. Methodological Fragmentation and A Fragmented Method? IV. AN AUTONOMOUS REGIME AMONG OTHERS? V. THE RESPONSES BY THE INTERNATIONAL COURT A. Diplomatic Protection and the Nottebohm Case B. Congo v. Uganda and Diallo in the I.C.J. C. Arbitrary Expulsion and Detention, and Degrading and Inhuman Treatment in Diallo and in Belgium v. Senegal D. Restricting Another Form of Protection: Companies and Investor Rights in Diallo, Barcelona Traction and Legal Personality E. Sources of Authority: International Law as an Opened System after Germany v. Italy and Croatia v. Serbia VI. CONCLUSIONS: INCREMENTAL TRANSFORMATION I. THE INTERNATIONAL COURT AND THE PRESSING PROBLEMS OF FRAGMENTATION

    This Article analyzes the case law of the International Court of Justice (I.C.J.) and the discourse about the fragmentation of international law. As a result of many forces, international law, as a unitary legal system, is under pressure. The expansion of international law to cover new fields and the many new enforcement mechanisms have raised the prospect of the fragmentation of international law into several separated regimes.

    Different international courts and tribunals, as well as central international institutions such as the International Law Commission and other united Nations bodies, have made contributions to entrench the coherence of international law as a unitary legal system. Such contributions serve to clarify and strengthen "the systemic nature of international law," (1) and counter a threat of fragmentation. It is not surprising that fear of fragmentation could influence the development of international law. Nonetheless, it may be difficult to show such influence empirically by way of express statements to this effect in judgments. In light of the developments in the jurisprudence of the I.C.J., and the responses from central international institutions and different courts and tribunals, one conclusion is that even if the problems of fragmentation may remain pressing in different ways, they are not a threat to international law as a legal system. (2) The focus in this Article is the jurisprudence of the I.C.J.

    Twenty years of expansion of international law with new courts and enforcement mechanisms sparked concern over fragmentation among academics and judges. Institutional reforms to strengthen international law as a unitary legal system were never likely to come about via the treaty route. This Article explores whether the developments in procedure and substantive law can be seen as an alternative response. On one level the responses are incremental and limited; on another, it is argued in this Article, they contribute to fundamental changes of a transformational character. There is a transformation of international law taking place with changing concepts of state sovereignty, individual rights, jurisdiction, procedure, and evidence incrementally remedying limitations of traditional doctrine. Support for the strengthening of international law as a legal system is found in the Vienna Convention on the Law of Treaties Article 31(3)(c) on the application of "any relevant rules of international law applicable in the relations between the parties." (3)

    The I.C.J. contributes to customary international law, resolving pressing problems of human rights and environmental law, and moving away from the strictly inter-state, non-hierarchical perspective of international law where state consent has put extreme restrictions on jurisdiction, obligations of states and the development of the law.

    In 1999, Pierre-Marie Dupuy suggested that as a matter of "judicial policy," the I.C.J. should revitalize its role as the central judicial body of the international community. (4) Similarly Georges Abi-Saab observed that there could be "a 'judicial system' without a centralized 'judicial power' invested in it, and with the jurisdiction of its components remaining in general ultimately consensual." (5) Such a system can develop through the cumulative process of international law, of which custom is the most visible, but not the only, example. Abi-Saab added that this process depends on the behavior of the relevant legal actors, not only states but also the courts and tribunals themselves. (6)

    This Article argues that the roles of the I.C.J.--the "principal judicial organ of the United Nations" (7)--and other U.N. organs such as the International Law Commission (the "ILC"), tasked with "encouraging the progressive development of international law and it codification," (8) are increasingly important in a more complex international law system with a multiplication of treaty regimes and enforcement mechanisms. The I.C.J. and other U.N. organs not limited to a single treaty regime can rely on their own experience from other fields, a wider body of law, and also a general legal method.

    Ralph Wilde has suggested for the human rights field that the I.C.J. "might 'add value' when compared to treatment by a specialist tribunal." (9) The I.C.J. has a long-standing practice and experience ranging across all fields of law and in applying multiple fields of law simultaneously, including more than one field of human rights law and multiple human rights treaties and other areas of law. The argument in this Article is that this proposition about the value of the I.C.J. applies not only to human rights law; rather it is true across all of international law and its different disciplines.

    Article 92 of the U.N. Charter establishes the I.C.J. as "the principal judicial organ of the United Nations," and the I.C.J.'s position is strengthened not only by the extensive jurisprudence, clarifying treaty obligations and customary international law, but also by the quality of and respect for that jurisprudence across legal communities. Specialist bodies may have specialist competence, both in terms of expertise and authority, and the I.C.J. has, as will be discussed in the Article, paid respect to that in different contexts. The I.C.J.'s authority is particularly strong on general international law, its principles and method. (10) The interaction between the I.C.J. and the ILC on the formation of customary international law in the context of the ILC study on that topic (11) is interesting. The Special Rapporteur Sir Michael Wood rationalizes and closely follows the methodological approaches developed by the I.C.J., which is what other U.N. bodies attempt to do when they address such issues. (12)

    This Article explores whether, and to what extent, the case law of the I.C.J. has reasserted the Court's place at the summit of the international legal order. Parallel inquiries into the practice of other international courts and tribunals and their reception and application of the jurisprudence of the I.C.J., and other forms of "dialogues," are important for an understanding of international law as a legal system, and also the fragmentation and convergence issues discussed in this Article. There are valuable studies of different sectors or treaty regimes, but gaps remain and there is a need to consolidate relevant scholarship and compare across those sectors and regimes. Institutional and procedural issues are important, as is the development of substantive law through the clarification of issues that are brought before the I.C.J. and other international courts and tribunals.

    A preview of the remainder of the Article is provided in the following brief roadmap. The Article has six parts. Part II introduces the reactions to the threat of fragmentation of the international legal system and the movement toward convergence. Part III introduces three forms of fragmentation: substantive, institutional and methodological, which are discussed in the Article. Part III.A addresses how different regimes or disciplines lay claim to autonomy and become self-contained fragmented regimes. It explains how, through reliance on the insight that the sources of international law do not operate in a vacuum but rather in relation to a broader context of rules, fragmentation should give way to convergence. Part III.B focuses on how, despite the lack of formal hierarchy between international courts and tribunals, the pronouncements of the I.C.J. as the only permanent tribunal of general jurisdiction, carry particular weight. The I.C.J. provides international law with a center of gravity. Part III.C focuses on the different methods for interpreting treaties and other instruments. The I.C.J. has maintained one universal method of treaty interpretation while, within this framework of a common method, developing a more dynamic understanding and openness to approaches to interpretation that will enable a move towards systemic convergence.

    Part IV considers the institutional role of the I.C.J. It explores why the I.C.J. is uniquely positioned to lead the way in the shift from fragmentation to convergence in international law. Having left behind some of the exaggerated strictures of state consent in the doctrines of the 1960s to 1990s, the I.C.J. is now in a better position to resolve pressing problems of the expansion of international law and the multiplication of international courts and enforcement mechanisms. The different mechanisms for making new treaty regimes more effective of the 1990s could have different consequences for the I.C.J. They would strengthen the effectiveness of international law or at least the treaty obligations in question. Their consequences for the I.C.J. and international law as a legal system were less clear.

    Part V analyzes the post-war case law of the I.C.J. on consular protection that have remained one of the pressing problems of international law, and how this case law has provided the means for developing human rights protection. This case law provides support for...

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