International Law's Unities and the Politics of Fragmentation

Abstract

This paper explores the mainstream discourse on unity/fragmentation in international law. It seeks to demonstrate that a number of 'fragmentation' concepts and issues are poorly theorized, if at all, and that this generates discussions that may, as a result, be essentially mistaken. It does that by critically addressing one of the many controlling assumptions that presently structure the fragmentation debate. At stake in this paper, in particular, is the one-dimensional representation of fragmentation as pertaining only to substantive unity, that is, to issues of overlapping and possibly contradictory legal norms, regimes or judicial decisions. Against this equation, this paper argues that unity is an elusive and multifaceted concept. Unity comes (and goes) in many different forms and at many different levels, none of which is logically more compelling or self-evident than another. Accordingly, any discourse on fragmentation is inevitably contingent. It presupposes the choice of a particular narrative perspective on unity and ultimately reflects certain preferences regarding the nature and function of international law. To address fragmentation solely as a substantive/technical problem is therefore problematic in at least two respects. For one thing, it ignores alternative narratives about the identity and unity of international law and fails to appreciate that to each form of unity corresponds a special form of fragmentation, as well as specific challenges and solutions. For another, and more fundamentally, it overlooks the ‘politics’ of fragmentation, i.e. the fact that behind the seemingly neutral discourse on conflict of norms lies a Bourdieusian ‘classification struggle’ (lutte de classement), in which efforts by the dominant agents of the international legal fi eld to control and impose certain cognitive criteria, symbolic hierarchies and interpretive procedures as objective (or official) necessities are pitted against the attempts of emerging actors to transform these structures of vision and division.

Keywords: fragmentation, unity, international law

JEL Classification: K33