Comparative International Law, Foreign Relations Law and Fragmentation: Can the Center Hold?

Abstract

This chapter represents my contribution to a book provisionally entitled Comparative International Law, scheduled for publication by Oxford University Press in 2017. It describes the emerging field of foreign relations law and discusses critiques of this field as an assault on international law, especially international human rights. It explores the ways in which this new field resembles both comparative international law and concerns about fragmentation in international law. All three pursuits challenge the traditional conception of general international law as uniform and universal and shift the focus of legitimating international law away from moral persuasion to falsifiable empirical claims.

The chapter argues that rather than threatening international law, foreign relations law and its intellectual siblings point to a strategy for bolstering the field. They serve as a means of identifying the functionally discrete dimensions of international law, as opposed to a unified and homogenous conception. Given the risks entailed in a universal, values-based international enterprises, as exhibited by past dystopias, an empirically grounded functionalism holds the most promise for protecting the field’s relevance and value.