The Fragmentation of International Law: Contemporary Debates and Responses

2020 ◽  
Vol 19 (1) ◽  
pp. 177-219
Author(s):  
Musa Njabulo Shongwe
Keyword(s):  
International Law ◽  
Legal System ◽  
Case Law ◽  
Real Problem ◽  
Academic Scholarship ◽  
The Future ◽  
International Legal Order ◽  
International Legal System ◽  
Fragmentation Of International Law ◽  
Academic Debate

Abstract The fragmentation of international law is an undeniable issue in contemporary international law, which has received some considerable critical attention this past decade. Regardless of the fact that this is an age-old problem, its recent manifestations have sparked a debate in which two groups of international scholars (positivists and realists) have expressed contesting views on whether fragmentation is a real problem to be solved, or simply a pure academic anxiety about the future of international law. This paper describes why and how fragmentation is a problem of international law, through case law examples of substantive and procedural aspects of fragmentation. The paper then analyses the value of international law mechanisms of dealing with normative conflicts, as well as the shortcomings of those tools. The paper reviews the ongoing debate as to whether fragmentation is a negative or a positive force in the international legal order. The paper contributes to the academic debate by arguing that because of the structural make-up of the international legal system, fragmentation is inevitable, but at the same time, it is a manageable phenomenon. It is argued that fragmentation is a permanent feature of the international legal system, and as such, its relevance to the future of international law must not be undermined. The paper also argues and recommends that the ever-important goal of ensuring unity and coherence of the international legal system should never be lost, and this argument is advanced in view of contemporary academic scholarship that seeks to put the matter of fragmentation to rest.

scholarly journals China in the Post-World War II International Legal System

2015 ◽  
Vol 01 (02) ◽  
pp. 205-222
Author(s):  
Sheng Hongsheng
Keyword(s):  
World War Ii ◽  
International Law ◽  
Legal System ◽  
World War ◽  
System A ◽  
Evolving System ◽  
International Legal Order ◽  
Rise Of China ◽  
International Legal System ◽  
The Rise Of China

Dramatic changes have taken place in the international legal system since the end of World War II, such as the expanding arenas for application of international law, the emergence of a series of new legal institutions, and the parallel extension of both rights and obligations of states. In recent years, new developments have been arising in the international legal system, manifested by three important sets of transition, that is, from a "sovereign priority" to a "human rights priority"; from "consent-orientation" to "coercion-orientation"; and from "integrity" to "fragmentation." The rise of China and the evolution of international law are closely related: while China's ascent has been achieved within the parameters of the international legal system, a more prosperous and stronger China will certainly influence the future trajectory of the evolving system. China should and can be a positive force in constructing a contemporary international legal order through promoting domestic justice and international rule of law. In this process, China needs to take a more proactive role and evolve from being a recipient to a rule-maker, in order to modify the outdated principles and rules in international law.

Challenges for the (Present/) Future of ird World Approaches to International Law

2008 ◽  
Vol 10 (4) ◽  
pp. 467-477
Author(s):  
Ibironke Odumosu
Keyword(s):  
International Law ◽  
Legal System ◽  
Third World ◽  
International System ◽  
The Future ◽  
Future Challenges ◽  
International Legal System ◽  
Material Power

AbstractThis article examines the future of Third World Approaches to International Law (TWAIL) and its ability to meet its challenges and achieve its objectives in a hegemonic international system. It discusses the fundamental role of ideas, the challenge of ideational (and material) power, and the reconstruction of identities, in meeting the challenges of TWAIL perspectives. In discussing these components and their interaction, the article observes that while they show some promise for the future of TWAIL, they also embody severe limitations. The article concludes with some thoughts about TWAIL's future engagements and on the note that even though the challenges are arduous, TWAIL perspectives possess some potential to meet the present and future challenges of reconstructing the international legal system.

scholarly journals Crisis, Continuity, and Change in International Investment Law and Arbitration

2021 ◽  
pp. 321
Author(s):  
Valentina Vadi
Keyword(s):  
International Law ◽  
Legal System ◽  
International Investment ◽  
International Investment Law ◽  
Continuity And Change ◽  
The Past ◽  
The Future ◽  
International Legal System ◽  
Investment Law ◽  
Wealth Of Nations

The dialectic between continuity and change lies at the heart of international law, which seeks to foster peaceful, just, and prosperous relations among nations. International law endeavors to govern the future by applying, in the present, norms that are inherited from the past. Nonetheless, everything flows and in an ever-changing world, some change is needed within the international legal system to ensure its stability especially in time of crisis. Not only can crises constitute means for the development of international law, but they can test, undermine or ultimately buttress the structure of international law. This article explores the connection between crisis, continuity, and change in international investment law and arbitration. It seeks to answer the following question: can international investment law successfully address the challenges posed by the coronavirus crisis? Or will the pandemic change the field of international investment law as we know it? After briefly discussing a range of procedural matters, the article focuses on substantive aspects, namely, the kinds of claims that can be filed, the kind of defences that can be raised, and how arbitral tribunals can adjudicate such matters. In this way, the article ultimately concludes that both continuity and change are necessary for ensuring the health and wealth of nations and justice among them.

Addressing Norm Conflicts in a Fragmented Legal System: The Doctrine of Lex Specialis

2005 ◽  
Vol 74 (1) ◽  
pp. 27-66 ◽  
Author(s):  
Anja Lindroos
Keyword(s):  
Human Rights ◽  
International Law ◽  
Legal System ◽  
Study Group ◽  
Environmental Regimes ◽  
International Legal System ◽  
Normative Conflicts ◽  
Fragmentation Of International Law ◽  
Institutional Fragmentation

AbstractThe increased fragmentation of international law has been accompanied by a more problematic phenomenon: institutional fragmentation that has strengthened the role of specialised regimes (e. g., WTO, EU, human rights and environmental regimes) within the international legal system. "The emergence of seemingly independent subregimes has given rise to a number of legal concerns – among these is the existence of normative conflicts between regimes." In a recent report by the Chairman of the ILC Study Group on Fragmentation of International Law, Martti Koskenniemi, dealt with the role of the lex specialis maxim as a means of addressing the relation between selfcontained regimes and general international law. This article argues that an application of lex specialis, although widely accepted, is impeded by its conceptual vagueness. Lex specialis may be well-suited to resolve certain types of normative conflicts, such as conflicts within sub-regimes, which may be viewed as a more traditional manifestation of normative conflicts. The fragmentation of international law, however, has also created new types of conflicts, namely those between different, seemingly independent normative orders. The article suggests that the lex specialis maxim is a less-suitable approach to normative conflicts between such unrelated normative orders. In a fragmented legal system such as that of international law, these types of conflicts may, accordingly, prove a particular challenge.

scholarly journals The Impact of Thoughts in the Creation of International Law Rules: From Former Thinkers to the Future Scholars

2016 ◽  
Vol 11 (2) ◽  
pp. 33
Author(s):  
Roghieh Ebrahimi ◽  
Hossein Sharifi Tarazkouhi
Keyword(s):  
International Law ◽  
Legal System ◽  
International System ◽  
Human Sciences ◽  
Essential Component ◽  
The Future ◽  
The Status ◽  
International Legal System ◽  
The Creation ◽  
The Impact

International law as one of the human sciences which has been formed in the light of governments’ needs for regulation of relations and pertinences is a set of rules which based on the increasing complexity of international life; it has been added to its importance gradually. The international nature of rules in this science leads the main followers of international system namely government to be identified as drafters of aforementioned rules. In this research we will discussed about the status of human thoughts as the smallest subjects of international system and we try to prove this hypothesis that human thoughts had been an essential component in the formation of rules in the international legal system.

Treaty withdrawal and recalcitrant States

2020 ◽  
Vol 9 (2) ◽  
pp. 225-240
Author(s):  
Joseph Crampin
Keyword(s):  
International Law ◽  
Legal System ◽  
Legal Order ◽  
Vienna Convention ◽  
High Profile ◽  
Binding Force ◽  
International Legal Order ◽  
International Legal System ◽  
The Law

The recent prevalence of high-profile unilateral treaty withdrawals raises broader questions over trust in treaty-making. Given the foundational importance of trust in treaties to international law, these withdrawals present risks to the international legal order generally. The issue for international law is how it can regulate treaty withdrawal in a way that preserves trust in the international legal system. The problem of trust is twofold. If international law adopts too permissive a stance towards unilateral withdrawal, then this will undermine trust in the binding force of treaties: pacta sunt servanda. If it is too restrictive, it will undermine the authority of international law, since it will result in situations in which recalcitrant States (ie States which have decided no longer to comply with their obligations) disobey, and are seen to disobey, their obligations. The paper seeks to explore this tension that underlies the regulation of treaty withdrawal. First, it analyses historical approaches to the problem, and, second, how the Vienna Convention on the Law of Treaties has sought to resolve it. It then examines how the principle is and can be used to achieve a balance between integrity and authority that can assist international law in regulating withdrawal and recalcitrance in a manner that preserves trust in treaty-making.

Nationality on Trial: International Private Law across the Mediterranean

2018 ◽  
Vol 73 (1) ◽  
pp. 81-113
Author(s):  
Jessica M. Marglin
Keyword(s):  
International Law ◽  
Legal System ◽  
Islamic Law ◽  
Legal Case ◽  
International Private Law ◽  
The Status ◽  
International Legal Order ◽  
History Of ◽  
International Legal System ◽  
History Of International Law

This article uses a single, transnational legal case that played out between Italy and Tunisia in the 1870s and 1880s to tell a truly global history of international law—that is, one that goes beyond the boundaries of the West. Samama v. Samama was a fabulously complicated case that dragged on in Italian courts for almost a decade. The crux of the legal arguments concerned the nationality of Nissim Samama, a Jew born in Tunis; Samama’s nationality, in turn, would determine which legal system regulated his estate. The Italian civil code enshrined respect for the national law of a foreigner, but such foreigners were presumed to be Western. A case involving the national law of Tunisia and the status of Jews called the very foundations of the international legal system into question. In putting Samama’s nationality on trial, the case opened up debate over fissures in the emerging theory of international law: How could non-Western states like Tunisia fit into an international legal order? How did Islamic law intersect with international law? What was the status of Jewish nationhood in a world increasingly based on exclusive nationalities? The Samama case offers access to the voices of European international lawyers debating the ambiguities of their field, as well as those of Maghrebis articulating their own vision of international law. The resulting arguments exposed tensions inherent to an international legal system uncomfortably balanced between universalism and Western particularism.

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