A call to freedom: towards a philosophy of international law in an era of fragmentation.

• Author: Khrebtukova, Alexandra
• Position: Report

Table of Contents I. Introduction II. Self-Contained Regimes A. Introduction B. The Regime C. Self-Containedness D. Structural Bias III. Incommensurability: Inter-Regime Conflict IV. Rethinking Statehood A. Introduction B. Fragmentation and the Need to Rebuild the State C. The State As Empty Signifier D. Aims Toward a Negative Structural Bias V. Towards a Philosophy of International Law in an Era of Fragmentation A. Introduction B. The Freedom of the Individual and the Sovereignty of the State C. State Sovereignty and International Law VI. Professional Sensibility VII. Conclusion I. Introduction

Today, it is not uncommon to conceive of international law in terms of multiple specialized branches. (1) With the proliferation of international multilateral treaty regimes surrounding specific issue-areas, the international legal landscape will differ--from the law, to its administration, to the methods of dispute resolution--depending on whether the issue is seen as one of international trade, international human rights, international environmental concern, international humanitarian law, and so on. The many specific issue-areas into which international law has proliferated has been described as special "self-contained regimes." (2) Different international legal regimes may embody incommensurable systems of norms, and no over-arching legal system has been politically negotiated to create a global hierarchy. In this article, I argue that a re-politicization of the modes of global decision-making, and a re-conceptualization of the nature and role of the state, are potentially fruitful avenues for our approach to international law in the modern era of fragmentation.

Often, the interests at issue in an international conflict fail to fall unambiguously within a single pre-negotiated legal framework. As a result, conflicts between certain norms remain unresolved. For example, while the General Agreement on Tariffs and Trade balanced the protection of national industries against the free movement of goods and services, it did not fully settle the relationship between the interest in removing restrictions to trade and the interest in a precautionary approach to the exploitation of natural resources. What is the hierarchical relationship between the different norms these two interests embody? Is the norm favouring free trade in the absence of conclusive evidence of its harmfulness more important than the norm against engaging in enterprises whose long-term effects on the environment are unknown but potentially grave?

The starting point for this article is that each special 'self-contained' international legal regime represents a framework for systematically resolving a particular set of conflicting interests according to a particular hierarchy of norms and values. In specific contexts, whether the potential risks to the environment outweigh the negative consequences of a trade restriction is a decision that is sure to affect the lives of many, irrespective of which side it comes out on. I will argue that the real issue with respect to the so-called fragmentation of international law is not, as is commonly argued, that the proliferation of regime-specific decision-making bodies poses a threat to the continued coherence of general international law. Rather, the threat is that, given the non-existence of a definitive global legal hierarchy of norms (outside of the extremely limited scope of jus cogens), important political and normative decisions will be made piecemeal by the decision-making bodies of particular legal regimes. These decision-making bodies, already embodying particular systems of valuation, are then thereby handed power and influence without a pre-negotiated body of law to apply.

In arguing for more democratic involvement at certain levels of normative decision-making, this article aims to complement and parallel the scholarship of the Global Administrative Law (GAL) Project. (3) The GAL Project's aim is to increase the transparency, accountability, and participation in global regulatory regimes, and in that regard, represents a move toward greater democratic legitimacy. What I wish to do here, however, is flesh out an additional and often neglected perspective--the role of the state in the era of globalization.

Using a theoretical framework based on the notion of the 'empty signifier', I aim to push for a particular ideal of the state--that is, the state as the concrete embodiment of individual freedom to engage the collective order through political struggle. I argue that a conscious move on the part of a state's agents toward this self-perception may stimulate a rethinking of the role of states in debating and negotiating the resolution of global normative conflict. Furthermore, I argue for a new approach to the vocational training of international lawyers, redefining and refocusing their role and agency in a globalized, though fragmented, legal landscape. In doing so, I seek to catalyze the movement toward a much-needed rethinking of the concept of the state and of the international rule of law, to allow for a more inclusive and more democratic understanding of international community.

Part I of this article presents a perspective for thinking about the nature of self-contained regimes. Part II explores the incommensurable clash of normative systems that results from inter-regime conflict. Part III proposes a re-conceptualization of the nature and role of the state as a potential starting point for rethinking the way in which normative conflict is approached through international law. Part IV suggests some ways in which this re-conceptualization could effect a novel understanding of an international rule of law, focusing on a shift in the concept of state sovereignty. Part V concludes the discussion with some remarks about the role and modes of education conducive to effecting these conceptual shifts.

2. Self-Contained Regimes

   1. Introduction

      The term 'self-contained regime' has enjoyed a number of usages in international law. Sometimes the notion appears to refer solely to a set of secondary rules of state responsibility, in contrast to, and with primacy over, general international law. (4) Sometimes the phrase is used to describe interwoven bundles of primary and secondary rules dealing with an issue in a way other than that issue would have been dealt with under general international law. (5) And sometimes it is used in reference to entire specialized branches of international law--such as 'human rights law,' 'humanitarian law,' 'international trade law,' 'European law,' 'international environmental law,' 'space law,' and so on--with particular modes and techniques for interpreting and administering a functionally specialized body of jurisprudence that often modify or exclude general international law. (6) It is the latter of these three senses that forms the focus of the present discussion. It is this definition that is meant by usage of the phrase 'self-contained/special regime' throughout the remainder of this text.

      One example of the way in which international law has been conceived as a set of discrete and relatively autonomous fields is provided by the Legality of the Threat or Use of Nuclear Weapons case, in which the International Court of Justice, having recognized the need to consider 'the great corpus of international law norms available,' (7) then proceeded to examine a series of smaller corpuses, each separate and distinct from one another: international human rights law, international environmental law, and international humanitarian law. Throughout the opinion, the treaties embodying these various corpuses are seen not as instruments of a general and unitary international legal spectrum; rather, they are envisaged as forming relatively separate spheres of their own special law. Thus, for example, the Court points out that the Hague Conventions of 1899 and 1907, the St. Petersburg Declaration of 1868 and the Brussels Conference of 1874, as well as the Geneva Conventions of 1864, 1906, 1929 and 1949, cohere in a way that transcends the simplicity of their existence as multilateral treaties within the corpus of general international law. Rather, 'they are considered to have gradually formed one single complex system, known today as international humanitarian law.' (8) They are considered, in the terms of the present discussion, to have formed one self-contained regime.

      As the Nuclear Weapons case illustrates, it is not uncommon that a single legal issue may implicate a multiplicity of such 'single complex system[s]'. Thus, from the perspective of the International Covenant on Civil and Political Rights, the legality of the threat or use of nuclear weapons gives rise to a particular set of legal issues. From the perspective of the norms embodied in the international environmental regime, a whole new set of issues arises. Each seeks to effect a legal resolution most favourable to its own specific set of concerns. A solution satisfactory to the legal regime of one system of international law will not always (if ever) satisfy the others--a rule of the absolute illegality of the threat or use of nuclear weapons, favoured by the perspective of human rights, may not be acceptable from the perspective of the laws of war, concerned with national security and strategic self-defence. As a result, each legal regime will naturally assert itself as the proper forum in which to address the situation, claiming superior status for its particular descriptions and concerns. (9)

      Moreover, each regime system is often equipped with its own structures of judgment and oversight, in the form of specialized international tribunals or other implementation mechanisms. Each such mechanism, by its very nature, is programmed to frame the legal matters before it in a way that addresses the issues pertinent to its special regime. Given that the issues pertinent to varying international regimes are often very...