Abstract
The debate about whether international law is fragmented or coherent is no arid discussion. If fragmentation is in the ascendancy, many commentators argue that something needs to be done. It is, of course, vital for the success of any legal system to achieve some level of predictability and certainty and to consistently deliver comprehensive justice. A legal system must, first and foremost, be a justice system, if there is any point to its existence. If it is not, then there may be another debate about whether it may be called a ‘legal’ system or a ‘justice’ system at all. I will review the debate between various leading commentators and analyse their proposals. My review of a number of different aspects and areas of international law shows that although fragmentation is apparent, the level of coherence in international law is far more surprising than fragmentation, which is inevitable, just as it is in the development of national law in, say, a federal polity. Just when international law seems to be fragmented somewhere, coherence is being achieved elsewhere. The result may be characterised as a kind of ‘equilibrium’ in which antagonistic and cohesive forces in international law keep one another in check, somehow balancing the other out. International law is capable of delivering comprehensive justice even if, at times, it may seem unlikely or elusive.
Highlights
1.1 IntroductionLike beauty, it has been said that the ‘fragmentation’ and ‘coherence’ of international law are ‘not aspects of the world, but lie in the eye of the beholder’ (Koskenniemi et al, 2006)
Most commentators agree that international law has undergone fragmentation and has become highly specialised and regionalised owing to increasing legal complexity and the proliferation of international legal instruments and institutions (Benvenisti & Downs, 2007; Koskenniemi et al, 2006)
This proliferation is part of an array of dispute settlement armoury all working in tandem in international law
Summary
It has been said that the ‘fragmentation’ and ‘coherence’ of international law are ‘not aspects of the world, but lie in the eye of the beholder’ (Koskenniemi et al, 2006). Fragmentation refers to the way in which international law fails to accommodate a wider array of interests than the parties to the initial dispute This failure includes the piecemeal approach to international dispute settlement where issues can be ‘salami-sliced’ in order to facilitate forum shopping and often to avoid or enliven a particular convention or dispute settlement regime. Posner and others argue that states abandon courts and tribunals that cease to meet their interests, setting up others causing an international adjudicative proliferation (Schultz & Ridi, 2017) This proliferation of international courts and tribunals causes ‘overlapping jurisdictions and ambiguous boundaries’ (Benvenisti & Downs, 2007). The commentators book-end the debate by observing fragmentation while at the same time affirming evidence of efforts to achieve coherence
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