CYIL vol. 11 (2020)

SILVANO DENEGA SOUZA

CYIL 11 (2020)

2. The Phenomenon of Fragmentation of International Law Present days are marked by a high level of specialization. Throughout fields, for any human need there is someone or some institution ready to take action. When one is faced with a health problem, this individual pays a visit to a specialist. If a child has an earache, it is naturally taken to the otorhinolaryngologist – nothing more logical, considering this professional has concentrated much of their training on specializing in that area. Like the example, general international law, as it has developed, followed a course of action through compartmentalized special regimes, which systematized the multiple areas that are vital to sovereign states and to the international community. A phenomenon which was not envisaged, organized, discussed or even planned: it was natural 5 and still, it gives signs that it will endure the test of time. The emergence of international specialized circles in areas such as humanitarian law, environmental protection, trade and investment liberalization, all relatively autonomous in structure and action, revealed some contrasting scholar positions. For those opposing the fragmentation phenomenon, recurrent criticism is in that international law is at an advanced voiding process, and this aspect could reflect on lack of legal certainty and even lead to breaking away from the original canons of general international law. 6 International law, as Christian Leathley puts it, would be ‘a victim of its own success.’ 7 Leathley, himself an opponent of fragmentation, wrote the article Institutional Hierarchy to Combat the Fragmentation of International Law , in which he advocates the absolute hierarchy of an ‘international court’, aimed at ‘centralizing’ international jurisprudence and also curbing the emergence of new specialized international tribunals, 8 as a means to undermine and, at last, obliterate fragmentation of international law. 9 However, there is a notorious and indispensable variable yet to be considered, which is the intensification of international activity due to the globalization process. This new phase of international society, politics, economy, as well as interpersonal and interstate relations 5 ‘The period of confidence, 1870–1914: fragmentation was the prologue to unity: from the mid-nineteenth century until the outbreak of the First World War, the discipline evolved in an atmosphere of confidence and innovation. International lawyers did not hesitate to claim that “considerable progress has been accomplished in international law” and that “never before has human solidarity been so well understood.” […] The preponderance of specialized rules was a temporary and even fortunate stage that would, in due course, generate international law’s universality. In this context the specialization of legal rules was seen as a positive and desirable phenomenon that would eventually lead to their universality.’ See MARTINEAU, Anne-Charlotte, ‘The Rhetoric of Fragmentation: Fear and Faith in International Law’ (2009) 22/1 Leiden Journal of International Law 1, 10. 6 Koskenniemi and Leino stress that some arguments of the critics of fragmentation, such as ‘loss of overall control’, ‘without any overall plan’, posing law as ‘fragmented and unmanageable’ are the result of ‘postmodern’ anxieties, originated from uncertainty, conflicts and the globalization paradoxes. KOSKENNIEMI, Martii and LEINO, Päivi, ‘Fragmentation of international law: Postmodern Anxieties?’ (2002) 15/3 Leiden Journal of International Law 553, 556. 7 LEATHLEY, Christian, ‘An Institutional Hierarchy to Combat the Fragmentation of International Law: Has the ILC Missed an Opportunity?’ (2007) 40/1 New York University Journal of International Law and Politics 259, 263. 8 Cesare Romano argues that the rise of these tribunals is a result of the investment of sovereign states and international organizations, so that these can create their own international environmental legal standards. He goes on to say that the interpretation and application power that follows is a perfectly natural process. Cesare ROMANO, P. R. ‘The Proliferation of International Judicial Bodies: the Pieces of the Puzzle’ (1999) 31/4 New York University Journal of International Law and Politics 709, 728. 9 Leathley (n 7) 266-267.

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