A Call to Freedom: Towards a Philosophy of International Law in an Era of Fragmentation

Article excerpt

Table of Contents

I. Introduction
II. Self-Contained Regimes
    A. Introduction
    B. The Regime
    C. Self-Containedness
    D. Structural Bias
III. Incommensurability: Inter-Regime Conflict
IV. Rethinking Statehood
    A. Introduction
    B. Fragmentation and the Need to Rebuild the State
    C. The State As Empty Signifier
    D. Aims Toward a Negative Structural Bias
V. Towards a Philosophy of International Law in an
Era of Fragmentation
    A. Introduction
    B. The Freedom of the Individual and the Sovereignty of
    the State
    C. State Sovereignty and International Law
VI. Professional Sensibility
VII. Conclusion

I. Introduction

Today, it is not uncommon to conceive of international law in terms of multiple specialized branches. (1) With the proliferation of international multilateral treaty regimes surrounding specific issue-areas, the international legal landscape will differ--from the law, to its administration, to the methods of dispute resolution--depending on whether the issue is seen as one of international trade, international human rights, international environmental concern, international humanitarian law, and so on. The many specific issue-areas into which international law has proliferated has been described as special "self-contained regimes." (2) Different international legal regimes may embody incommensurable systems of norms, and no over-arching legal system has been politically negotiated to create a global hierarchy. In this article, I argue that a re-politicization of the modes of global decision-making, and a re-conceptualization of the nature and role of the state, are potentially fruitful avenues for our approach to international law in the modern era of fragmentation.

Often, the interests at issue in an international conflict fail to fall unambiguously within a single pre-negotiated legal framework. As a result, conflicts between certain norms remain unresolved. For example, while the General Agreement on Tariffs and Trade balanced the protection of national industries against the free movement of goods and services, it did not fully settle the relationship between the interest in removing restrictions to trade and the interest in a precautionary approach to the exploitation of natural resources. What is the hierarchical relationship between the different norms these two interests embody? Is the norm favouring free trade in the absence of conclusive evidence of its harmfulness more important than the norm against engaging in enterprises whose long-term effects on the environment are unknown but potentially grave?

The starting point for this article is that each special 'self-contained' international legal regime represents a framework for systematically resolving a particular set of conflicting interests according to a particular hierarchy of norms and values. In specific contexts, whether the potential risks to the environment outweigh the negative consequences of a trade restriction is a decision that is sure to affect the lives of many, irrespective of which side it comes out on. I will argue that the real issue with respect to the so-called fragmentation of international law is not, as is commonly argued, that the proliferation of regime-specific decision-making bodies poses a threat to the continued coherence of general international law. Rather, the threat is that, given the non-existence of a definitive global legal hierarchy of norms (outside of the extremely limited scope of jus cogens), important political and normative decisions will be made piecemeal by the decision-making bodies of particular legal regimes. These decision-making bodies, already embodying particular systems of valuation, are then thereby handed power and influence without a pre-negotiated body of law to apply.

In arguing for more democratic involvement at certain levels of normative decision-making, this article aims to complement and parallel the scholarship of the Global Administrative Law (GAL) Project. …