Fragmentation of International Law: Dispute Settlement

Here is a new angle for the fragmentation of international law discussion, in particular how individual international tribunals deal with fragmentation. Ruti Teitel and Robert Howse in “Cross-judging: Tribunalization in a Fragmented but Interconnected Global Order” argue against studying tribunalization in an aggregate quantitative assessment. Instead, they advocate a deeper qualitative study of whether tribunalization and fragmentation “introduces new dissonances and points in different and perhaps conflicting normative and institutional directions” to individual tribunals.  

 

In canvassing international human rights tribunals and international economic law tribunals, they find:-

 

Instead 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 as such. This may still be in a sense fragmentation, but in mirroring non- or anti-hierarchical democratic pluralism this kind of fragmentation enhances rather than menaces international law’s claim to legitimacy… Tribunalization can come to sight both in “humanity law” and in international economic law as an attempt to purify international legal regimes from “politics”-a response to the international law skeptics’ claim or suspicion that international law is just an epiphenomenon or a justificatory rhetoric for power politics.”

 

My view is less hopeful. Teitel and Howse accept the limits of the assumption that “(t)ribunalization means depoliticization.” Tribunalization only leads to a new level of political game with new constraints. Yet, they accept that tribunalization and fragmentation need not be a problem so long as there remains a “commitment to openness in the project of legal hermeneutics” – a praxis driven,

construction and evolution of legal order, whether domestic or international.  

 

At the extreme, this is not merely constructivism but a form of “uber-constructivism”. To extend Wendt’s oft quoted observation that states do not know what they want, Teitel and Howse are postulating that tribunals do not know what they want. This ignores a simple legal and political fact of life for tribunals. Tribunals are creatures of consent and are bound by that consent. Their mandates are spelt out by treaty. Simply put, tribunals are told what they should want. Yes, I agree that sometimes this instruction is not spelt out all that clearly. However, to assume that states parties to dispute settlement treaties have themselves a collective commitment to openness in the project of legal hermeneutics” jumps too many analytical steps.

 

At their most conservative, Teitel and Howse may just be advocating for some sort of universalist interpretative technique which results in harmonization. To date, this exists: the VCLT. But Teitel and Howse appear to be advocating something beyond the VCLT and if so, must, in the absence of further evidence, fall foul of positive international law.

 

The paper can be found at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1334289.

 

Views and comments are very welcome!

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