Does Proliferation of International Judicial Bodies Lead to the Fragmentation of International Law?

Abstract

In the past two decades, two phenomena, one occurring at the international level and one more theoretical, have preoccupied the scholarly analysis of international courts and tribunals. The occurring phenomenon is the proliferation or multiplication of international judicial bodies, witnessed in the international law towards the end of the twentieth century. The more ‘theoretical’ phenomenon is the possible fragmentation of international law that may accompany the proliferation (or multiplication) phenomenon. This chapter provides an overview of these two phenomena in international law. It reviews the concepts of ‘international judicial body’, ‘proliferation of judicial bodies’, ‘international law’, ‘unity of international law’, ‘fragmentation of international law’, ‘lex specialis’, ‘lex generalis’, ‘forum shopping’, ‘self-contained regime’. The chapter also examines the main scholarly views on the ‘fragmentation’ phenomenon advanced in the scholarship and provides a response to the question of whether the creation of multiple international judicial forums is likely to become a cause of fragmentation in international law. The overview and the analyses offered in this chapter are intended to provide the necessary theoretical background that will inform the response to the main questions of this study: whether the practice on treaty interpretation of two relatively new specialised courts, the ECtHR and WTO (the Appellate Body), may contribute to the fragmentation of international law, or otherwise such practices could constitute tools for keeping the coherence and unity of international law.