The Refinement of International Law: From Fragmentation to Regime Interaction and Politicization
Max Planck Institute for Comparative Public Law & International Law (MPIL) Research Paper No. 2016-19
Forthcoming in: International Journal of Constitutional Law, Volume 15, Issue 3, July 2017, pp. 671–704
29 Pages Posted: 17 Aug 2016 Last revised: 20 Sep 2021
Date Written: August 15, 2016
The new posture of international courts and tribunals is the ‘spirit of systemic harmonisation’, to use the words of the European Court of Human Rights Grand Chamber in Al Dulimi. Fifteen years after then ICJ President’s Gilbert Guillaume’s ‘proliferation’-speech before the UN General Assembly and ten years after publication of the ILC ‘fragmentation’-report, it is time to bury the f-word. Along that line, this paper concentrates on the positive contribution of the new techniques which courts, tribunals and other actors have developed in order to coordinate the various subfields of international law. If these are accompanied by a proper politicization of international law and governance, they are apt to strengthen both the effectiveness and the legitimacy of international law. Ironically, the ongoing ‘harmonisation’ and ‘integration’ within international law could also be conceptualised as a form of procedural constitutionalisation.
Keywords: international law, fragmentation, proliferation, politicization, legitimacy, contestation, regime
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