The refinement of international law: From fragmentation to regime interaction and politicization

Abstract

The new posture of international courts and tribunals is the "spirit of systemic harmonization," to use the words of the European Court of Human Rights Grand Chamber in Al-Dulimi. Fifteen years after the "proliferation" speech given by former President of the International Court of Justice, Gilbert Guillaume, before the UN General Assembly and ten years after publication of the International Law Commission's "fragmentation" report, it is time to bury the f-word. Along that line, this article concentrates on the positive contribution of the new techniques which courts, tribunals, and other actors have developed in order to coordinate the various subfields of international law. If these are accompanied by a proper politicization of international law and governance, they are apt to strengthen both the effectiveness and the legitimacy of international law. Ironically, the ongoing "harmonization" and "integration" within international law could also be conceptualized as a form of procedural constitutionalization.