The Fragmentation of International Law: Contemporary Debates and Responses

Abstract

Abstract The fragmentation of international law is an undeniable issue in contemporary international law, which has received some considerable critical attention this past decade. Regardless of the fact that this is an age-old problem, its recent manifestations have sparked a debate in which two groups of international scholars (positivists and realists) have expressed contesting views on whether fragmentation is a real problem to be solved, or simply a pure academic anxiety about the future of international law. This paper describes why and how fragmentation is a problem of international law, through case law examples of substantive and procedural aspects of fragmentation. The paper then analyses the value of international law mechanisms of dealing with normative conflicts, as well as the shortcomings of those tools. The paper reviews the ongoing debate as to whether fragmentation is a negative or a positive force in the international legal order. The paper contributes to the academic debate by arguing that because of the structural make-up of the international legal system, fragmentation is inevitable, but at the same time, it is a manageable phenomenon. It is argued that fragmentation is a permanent feature of the international legal system, and as such, its relevance to the future of international law must not be undermined. The paper also argues and recommends that the ever-important goal of ensuring unity and coherence of the international legal system should never be lost, and this argument is advanced in view of contemporary academic scholarship that seeks to put the matter of fragmentation to rest.