Fragmentation of International Law: Realities and Myths

Abstract

This paper is an analysis of whether the phenomenon of fragmentation of international law is a real or imaginary problem. It deals with concerns of fragmentation from two fundamental perspectives. The first perspective addresses institutional fragmentation as emanating from the proliferation of international courts and tribunals. In this regard the paper assesses the consequences of such proliferation in light of possibilities of conflicting decisions and overlapping jurisdiction and the impact that this has on the coherence, uniformity and predictability of international law. This assessment is supported by a critical analysis of how the existent judicial institutions have approached various questions of international law in order to discern whether concerns of fragmentation are grounded or merely superficial. Moreover, the paper assesses the notion of substantive fragmentation of international law. This entails an examination of whether international law is under threat of fragmentation due to possibilities of conflicting norms motivated by the development of numerous specialised fields of international law such as ‘trade law’, ‘the law of the sea’, ‘environmental law’ and ‘human rights law’.