Fragmentation and Coherence in International Law

Abstract

With the increasing scope and density of international law, we will observe increasing instances of fragmentation. Fragmentation is not necessarily a problem, insofar as there may be no need for coordination among different legal regimes. But where it does raise issues of conflict, or presents opportunities for synergy, it is useful to inquire whether fragmentation might be managed in a way that would reduce inefficient conflict, or harvest synergies. The existing formal system for management, provided in the VCLT, is quite limited in its response, and the outcomes that it produces would not necessarily be substantively satisfactory. This article reviews a number of types of responses that states might determine to use, in order to increase coherence. States can establish informal coordination mechanisms, and perhaps provide a mandate to international organizations to coordinate with one another. They can establish enforcement institutions for one regime that effectively structurally subordinates the law included in another regime. They can establish specific rules or general standards for the relationship between different rules. These rules or standards can constitute varying degrees of delegation to courts that may be established to address these issues.

Importantly, the growing congestion of international law, and the relation of different international legal rules to one another, provides some opportunities for synergy. Different rules of international law may be linked with one another in order to facilitate the making of law, and in order to improve the enforcement of law. There may be economies of scale and scope that can be harvested by appropriate linkages between rules and organizations. It is possible to construct beneficial competition among international legal rules or organizations. Finally, different regimes may be linked in order to use one regime to compensate those harmed by another.

Keywords: international law, fragmentation, trade, jurisdiction, subsidiarity

JEL Classification: K32, K33, K40, L41, N40, P45, D62, F10