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COPYRIGHT 2007 Stanford Law School
INTRODUCTION
I. THE EFFECTS OF FRAGMENTATION II. STRATEGIC COORDINATION IN THE DOMESTIC AND INTERNATIONAL CONTEXT III. FOUR FRAGMENTATION STRATEGIES 1. The Creation of a Large Number of Narrow, Functionally-Defined Agreements 2. Agreements Formulated in Specially Convened One-Time or Infrequently Convened Settings 3. Narrowly Circumscribing the Authority of Treaty-Based Agents 4. Threatening to Exit a Regime or Switching Regimes IV. COUNTERVAILING EFFORTS TO REDUCE THE FRAGMENTATION OF INTERNATIONAL LAW CONCLUSION
INTRODUCTION
In recent years there has been a growing debate in international legal circles about the importance of what is termed "fragmentation": the increased proliferation of international regulatory institutions with overlapping jurisdictions and ambiguous boundaries. Practicing jurists, in particular, have expressed the concern that increasing the number of international courts will lead to forum shopping, create inconsistency within case law, and "may jeopardize the unity of international law and, as a consequence, its role in inter-State relations." (1) By contrast, academic international legal scholars have tended to dismiss such concerns. Some point out that, despite the appearance of fragmentation, regulatory coordination among institutions is now better than ever before as a result of the growth in informal, market-like coordination mechanisms such as networks of governmental organizations. Others argue that fragmentation is a largely harmless side effect of the "institutional expression of political pluralism internationally," (2) or of the increased demand for expertise in international institutions. (3) From this perspective, the ongoing competition among international regulatory institutions for jurisdiction and influence will ultimately be as beneficial for the international regulatory regime as the competition among political interests is for democracy.
In what follows, we argue that fragmentation is a more serious problem than either group suggests because it operates to sabotage the evolution of a more democratic and egalitarian international regulatory system and to undermine the normative integrity of international law. Fragmentation does this in three ways. First, it limits the ability of weaker states to engage in the logrolling that is necessary for them to bargain more effectively with more powerful states. Weaker actors are, in addition to being far more numerous, more institutionally, economically, and geographically diverse than powerful states, suggesting that their preferences are also more diverse. This diversity of preferences makes it more difficult for them to achieve a consensus on a particular issue. At the domestic level weaker actors often manage to overcome this problem by logrolling or trading votes across issues. However, logrolling requires a venue such as a legislature where policy decisions are made on a wide range of issues, which is rare at the international level.
To the extent that powerful parties are able to forestall the emergence of such multi-issue venues by creating a fragmented system of multiple, issue-specific treaties, they can preserve and even increase the bargaining advantages that they currently possess. (4) Decentralized mechanisms such as networks possess a host of virtues and are capable of greatly facilitating coordination among states within a given regulatory arena. However, as we shall see, they are not well suited to promoting coalition building across issues in a fragmented system.
Second, by creating a multitude of competing institutions with overlapping responsibilities, fragmentation provides powerful states with the opportunity to abandon--or threaten to abandon--any given venue for a more sympathetic venue if their demands are not met. This further exacerbates the competition between institutions and effectively marginalizes the role of weaker states, which do not enjoy the same leverage. This is not the kind of environment in which a bottom-up process of constitution making on the part of international tribunals is likely to thrive.
Third, a fragmented system's piecemeal character suggests an absence of design and obscures the role of intentionality. As a result, it is often considered to be solely the accidental byproduct of historical events and broad social forces. This has helped obscure the fact that fragmentation is in part the result of a calculated strategy by powerful states to create a legal order that both closely reflects their interests and that only they have the capacity to alter. (5) In recent years, as hierarchical strategies have become contested and delegitimized, powerful states have increasingly relied on fragmentation strategies as an alternative means of achieving the same end in a less visible and politically costly way. Historical contingency and the strategic self-interest of powerful states have long been intertwined in connection with fragmentation. The narrow, functionalist design of the institutions that the Allied Powers created during the 1930s and in the aftermath of WWII was, for the most part, an accident of history. The policy problems that they were designed to address (e.g., economic stabilization, collective security, containment) emerged at different times in connection with specific historical events, and each required a high degree of expertise that could be found only in the domestic bureaucracies of the Allied Powers that were themselves organized along functionalist lines. In such an environment it was natural to respond to problems in a piecemeal way and to repeat the process as new problems and issues emerged. To a considerable extent, fragmentation was unavoidable.
Yet even during this early stage in the international system's post-war development there were strategic considerations at work. Historical accounts of the period make it clear that the Western powers wanted to insulate key regulatory institutions, particularly economic ones, from the influence of other states, from the newly created United Nations, and from potential cross-contamination from other policy spheres. (6) Paul Kennedy's history of the UN suggests that the great powers selectively employed fragmentation from the outset to prevent the Economic and Social Council (ECOSOC) from competing with the Security Council for dominance and fostering the integration of security and economic policy. The great powers did nothing to facilitate the UN Charter's requirement that all of the various specialized agencies such as the International Monetary Fund, the International Labour Organization, and the Universal Postal Union were to be "brought into relationship" with the UN and coordinated through the ECOSOC. Instead, they chose to preside passively over a growing overlap and confusion among the UN's growing number of newly created bodies. (7)
In the intervening decades a host of new regulatory problems have emerged and numerous multilateral agreements and institutions have been created to deal with them. This has led to a growing number of jurisdictional disputes and mounting concerns about the international regulatory regime's lack of consistency and coherence that are the forerunners of the current preoccupation with fragmentation. In response, at each step along the way there have been frequent calls for better policy integration and coordination, and in recent years these calls have increasingly been accompanied by demands on the part of the developing states for better representation of their interests in key regulatory institutions.
Yet progress towards a more integrated and democratized international regulatory system and the redistribution of influence that it would entail has been virtually nonexistent. We believe that this lack of progress stems from the fact that the powerful states, particularly the United States, which have disproportionately shaped the international regulatory agenda, have chosen to rely on four strategies that have the effect of promoting fragmentation. These four "fragmentation strategies" include (1) avoiding broad, integrative agreements in favor of a large number of narrow agreements that are functionally defined; (2) formulating agreements in the context of one-time or infrequently convened multilateral negotiations; (3) avoiding whenever possible the creation of a bureaucracy or judiciary with significant, independent policymaking authority and circumscribing such authority when its creation is unavoidable; and (4) creating or shifting to an alternative venue when the original one becomes too responsive to the interests of weaker states and their agents.
These four strategies increase the transaction costs that weaker states have to pay to engage in the political coordination necessary to form a coalition that could more effectively bargain with their more powerful counterparts. The extensive archipelago of narrowly focused and poorly coordinated treaties and multilateral organizations that characterizes the international legal system, the slow rate with which international institutions have been democratized, and the lack of redistribution between North and South all testify to the impact that these strategies have had.
Weaker states and those bureaucrats and judges who staff international institutions have not remained completely passive as fragmentation has increased. They have occasionally attempted to resist it by developing countervailing or "anti-fragmentation" strategies. These strategies are designed to lower rather than raise the transaction costs associated with strategic coordination. They operate by increasing the repeated game aspects of the institutional context, expanding the independence and role of tribunals and the bureaucratic components of multilateral institutions, and creating linkages between agreements that can serve to create coalitions. The fact that these strategies are at least intermittently successful is supported by the growing frequency with which powerful states resort to the fourth strategy of venue shifting.
This Article is organized into five Parts. In Part I, we briefly review the international legal literature dealing with fragmentation. In Part II, we examine the strategies that incumbent elites use to maintain their dominance at the domestic level. We argue that many of these strategies operate by suppressing political coordination, and we provide a theoretical framework for analyzing how powerful states use fragmentation to suppress the ability of weaker states to engage in political coordination at the international level. In Part III, we employ this theoretical framework to understand the operation and impact of four of the most prevalently employed fragmentation strategies. In Part IV, we describes the countervailing efforts of weaker states, international bureaucrats, and judges, and assess their impact. We conclude with an analysis of the conditions that facilitated the success of anti-fragmentation strategies and the likelihood that these conditions will reemerge in the near future.
I. THE EFFECTS OF FRAGMENTATION
As we have already noted, few legal theorists would view growing fragmentation as a serious problem despite the theoretical centrality of institutional integration in international law's self-narrative and its historical role in connection with the European Union. International legal theorists in the neoliberal, institutionalist tradition argue that it is not so much a problem as part of a gradually evolving solution to the demands imposed on the international system by globalization. Globalization has put a premium on efficiency, and decentralized processes are simply more efficient than more formal, centralized ones.
Charney is one of the theorists who views fragmentation as a market-like response to pluralist diversity that is vastly superior to more hierarchical alternatives:
In conclusion, I am not troubled by the multiplicity of dispute settlement systems established by the [Law of the Sea] Convention. I encourage all to embrace and nurture them so that they may fulfill their laudable objectives. We should celebrate the increased number of forums for third-party dispute settlement found in the Convention and other international agreements because it means that international third-party settlement procedures, especially adjudication and arbitration, are becoming more acceptable. This development will promote the evolution of public international law and its broader acceptance by the public as a true system of law .... Hierarchy and coherence are laudable goals for any legal system, including international law, but at the moment they are impossible goals. The benefits of the alternative, multiple forums, are worth the possible adverse consequences that may contribute to less coherence. This risk is low and the potential for benefits to the peaceful settlement of international disputes is high.
Other theorists in the institutionalist tradition who stress the growing role of intergovernmental and other social networks also consider the problem of fragmentation to be overblown. (9) The term fragmentation denotes a degree of isolation and lack of coordination that simply do not apply to today's increasingly networked world. William Burke-White acknowledges that "the rise of [multiple] international courts does increase the possibility of conflicting judgments, but it does so within the context of a more, rather than less, important role for international law." (10)
Burke-White goes on to describe how this interconnected system operates:
Counterbalancing the danger of fragmentation is an increasingly loud interjudicial dialogue. This dialogue has important implications for the unity of the international legal order as it provides actors at all levels with means to communicate, share information, and possibly resolve potential conflicts before they even occur. This interjudicial dialogue has been relatively well documented and occurs at three distinct levels. Supranational courts are engaged in dialogue with one another, national courts are citing to supranational courts, and national courts are in direct conversation with one another.... The significance of this interjudicial dialogue cannot be overstated, for it has the potential to preserve the unity of the international legal system in the face of potential fragmentation. Such dialogue, of course, relies heavily upon international judges themselves. If national and supranational judges consider themselves part of a common enterprise of international law enforcement, they can, through informal agreements, dialogue, and respect, avoid conflicts before they occur, help to minimize their effects when they do arise, and ensure the development of a unified system. (11)
Legal theorists coming from a post-modernist or constructivist tradition have tended to view fragmentation even more positively as a welcome alternative to the formal, top-down driven integration advocated by mainstream theorists. (12) The latter, they argue, allowed themselves to be trapped in the ideational framework of domestic law. As a result, they had created a concept of integration that privileged hierarchy and stasis over pluralist competition and adaptation. Such a structure was fundamentally unsuited to meeting the needs of a rapidly changing and more egalitarian international environment, increasingly reliant on technical expertise carried out in specialized international institutions. (13) Worse, by suggesting that the progress of international law was inextricably bound to the degree to which the international system was formally integrated, neoliberals had created a standard that critics of international law could seize upon to mistakenly judge it a failure.
Given the imperfections of formal integration, post-modernist theorists are dismissive of practicing jurists' anxieties regarding fragmentation's potential ill effects. Thus, in response to what they clearly view to be excessive concern displayed by the President of the International Court of Justice in making "three consecutive speeches before the United Nations General Assembly," Koskenniemi and Leino lament that "one may feel puzzled that among all aspects of global transformation, it is this they should have enlisted their high office to express anxiety over." (14) Rather than constituting a legitimate source of anxiety, 'fragmentation and the proliferation of courts are "either an unavoidable minor problem in a rapidly transforming international system, or even a rather positive demonstration of the responsiveness of legal imagination to social change." (15)
Although the full impact of the resulting system of competing normative structures is not yet clear, its appearance is viewed as a positive development. As Koskenniemi states in his essay What Is International Law For?, "[T]he proliferation of autonomous or semi-autonomous normative regimes is an unavoidable reflection of a 'postmodern' social condition and a beneficial prologue to a pluralistic community in which the degrees of homogeneity and fragmentation reflect shifts of political preference and the fluctuating successes of hegemonic pursuits." (16)
Despite their significant differences in emphasis, each of these defenses of fragmentation displays a tendency to embrace assumptions that are widespread among international legal theorists but which we believe to be suspect. The first of these assumptions is that the rate at which international law and international institutions are being created is a reliable indicator of the strength and importance of international law, and that the problems associated with fragmentation represent little more than transient costs of adjustment. (17) The fact that this assumption is often appropriate when viewing the evolution of international law over long time periods does not mean that it is true generally. At both the domestic and international levels, the proliferation of regulatory laws and institutions often signals incapacity and ineffectiveness as institutions generate new bodies and mandates in response to the failure of existing ones. In the United States, the protracted "war on drugs"...
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