From Fragmentation to Constitutionalization

19 Pages Posted: 20 Dec 2011

See all articles by Harlan Grant Cohen

Harlan Grant Cohen

Fordham Law School; University of Georgia School of Law; University of Georgia - Dean Rusk International Law Center

Date Written: December 19, 2011


This short essay, prepared for a panel on “The Impact of a Wider Dissemination of Human Rights Norms: Fragmentation or Unity?,” explores the connection between two popular, but seemingly contradictory discourses in international law: fragmentation and constitutionalization. After disentangling and categorizing the various types of fragmentation international law may be experiencing, the essay focuses in on one form in particular, the “fragmentation of the legal community.” This most radical version of fragmentation, the essay argues, has spurred a number of responses, many of which suggest the beginnings of a constitutional conflicts regime for international law. The essay ends by suggesting and exploring three types of constitutional conflicts rules already in limited use: (1) constitutional comity rules, (2) constitutional hierarchy rules, and (3) constitutional abstention rules.

Keywords: international law, fragmentation, constitutionalization, human rights

JEL Classification: K33

Suggested Citation

Cohen, Harlan Grant, From Fragmentation to Constitutionalization (December 19, 2011). Pacific McGeorge Global Business & Development Law Journal, Vol. 24, 2011, UGA Legal Studies Research Paper No. 11-14, Available at SSRN:

Harlan Grant Cohen (Contact Author)

Fordham Law School ( email )

150 West 62 Street
New York, NY 10023
United States

University of Georgia School of Law ( email )

Hirsch Hall
Athens, GA 30602
United States
706-542-5166 (Phone)

University of Georgia - Dean Rusk International Law Center ( email )

100 Herty Drive
Athens, GA 30602-6018
United States

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