Fragmentation

Abstract

Reliance on national courts may be necessary to support the international rule of law, but this comes with a cost. The unity in interpretation and application of international law, that already is rather limited, may be further undermined by diverging interpretations at the domestic level. Even when the standards of judicial independence are satisfied, and we discount differences in interpretation due to an open political and nationalistic bias of national courts, national judicial practice may diffuse a more or less clear international standard into a multitude of particular meanings that may differ between different courts in one state and between courts of different states. Such ‘fragmenting’ effects may even be more substantial than the effects of the proliferation of international courts. As a result, reliance on national courts may actually undermine predictability and equality in the application of the law — which are key features of any concept of the rule of law. This chapter assesses the risks of fragmentation and identify principles and practices by which such risk may be mitigated. It first discusses the causes of fragmentation that may result from the involvement of national courts in the interpretation and application of international law. It then reviews two factors that may curtail the fragmenting effects of national case-law: secondary rules of international law and dialogues between national courts and international and other national courts.