Fragmentation of International Law? Postmodern Anxieties

TLDR

International law has long lacked a clear normative hierarchy, and the rise of new tribunals has intensified concerns that these institutions may prioritize divergent political interests over traditional diplomatic principles, threatening the ICJ’s role. The authors conclude that fragmentation reflects political pluralism rather than a crisis, so excessive worry is unwarranted.

Abstract

Successive ICJ Presidents have expressed concern about the proliferation of international tribunals and substantive fragmentation of international law. This is not a new phenomenon. International law has always lacked a clear normative and institutional hierarchy. The problem is more how new institutions have used international law to further new interests, especially those not predominant in traditional law. The anxiety among ICJ judges should be seen less as a concern for abstract “coherence” than a worry about the demise of traditional principles of diplomatic law and the Court's privileged role as their foremost representative. As jurisdictional conflicts reflect divergent political priorities, it is unclear that administrative co-ordination can eliminate them. This does not, however, warrant excessive worries over fragmentation; it is an institutional expression of political pluralism internationally.