Academic journal article The Fletcher Forum of World Affairs

Cleaved International Law: Exploring the Dynamic Relationship between International Climate Change Law and International Health Law

Academic journal article The Fletcher Forum of World Affairs

Cleaved International Law: Exploring the Dynamic Relationship between International Climate Change Law and International Health Law

Article excerpt

INTRODUCTION

The field of international law often is taught and thought of as a group of disconnected substantive subfields, each with its own epistemic community. These specialized subfields range from international human rights law to the law of the sea, from international trade law to collective security law. Examples where subfields conflict with each other and separate examples where subfields complement each other have led two camps of commentators over the past decade to comprehensively define international law's nature as either united or fragmented in a binary fashion. Even the United Nations' International Law Commission established a study group to explore this topic, which concluded in 2006 after over four years of study that international law is fragmented due, in part, to the collision of various branches of international law.1 Efforts of both camps to articulate a complete theory that largely ignores or severely downplays the examples of the other camp creates disturbing anomalies, or rather antinomies, which "requires a reexamination of our fundamental premises" if one assumes the accuracy of one of the two camps.2 This article, which reflects the core theme of a forthcoming monograph by the author,3 does not attempt to definitively resolve this perennial debate over the nature of international law in such an all-or-nothing binary fashion. Rather, it takes a more nuanced, middle-ground approach by exploring how two subfields of international law - here, international health law and international climate change law - simultaneously conflict with and complement each other.

Some commentators have asserted that advances in our understanding of law will come from the cross-fertilization of ideas between different subfields.4 As the late Hans Kelsen, professor at The Fletcher School of Law and Diplomacy, asserted,

It is impossible to grasp the nature of law if we limit our attention to the single isolated rule. The relations which link together the particular rules of a legal order are also essential to the nature of law.5

This idea sparked the creation of a new approach to thinking about the perennial and often dialectic debate over the unified or fragmented nature of international law - an approach that has been labeled cleaved international law.6 The word "cleaved" here is an auto-antonym that concurrently can mean "to join together" (as in to cleave to one's spouse) and "to break apart" (as in to cleave a branch from a tree truck). This term is not used to embody a static relationship between these opposing forces. Instead, this term captures an approach to international law that demonstrates how different branches of international law simultaneously conflict with and complement each other on the horizontal level. This approach adopts comparative law's essentially intuitive methodology of evaluating two bodies of law in light of each other.7 While there can be many purposes for such comparison,8 this approach focuses on the purpose of knowledge development. This approach presents a deformalized, pragmatic perspective to international law that embraces the contradictions and general messiness that exist between the various parts. As the late master comparativist Patrick Glenn explained,

There is nothing in the word [com-paring] that suggests that the result of the process is somehow terminal, in ensuing uniformity, or ensuing disastrous conflict. . . . Com-paring thus involves an enduring process of peaceful co-existence (in spite of difference, in spite of potential conflict), in a way which ensures not uniformity but ongoing diversity.9

It is this middle-ground nature of comparison that makes it a natural fit with cleaved international law.

This article goes on to explain the underlying relationship between climate change and human health, describe international health law and international climate change law as branches of international law, and explore how these branches of international law simultaneously conflict with and complement each other in the context of the United Nations Framework Convention on Climate Change and the Paris Climate Change Agreement. …

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