FRAGMENTATION OF INTERNATIONAL LAW

One can trace the contemporary history of international law using the end of the Cold War as a starting point. It is at that junction when one can see the protruding fragmentation of international law and its jurisprudence. The process of fragmentation was perpetuated by the expansion of global trade and lack of a formal hierarchy of centralized mechanism of dispute resolution amongst other reasons. The aforementioned causes led to new international courts and tribunals such as The International Criminal Tribunal for the former Yugoslavia, the World Trade Organisation, the International Criminal Court, and the International Tribunal for the Law of the Sea. Furthermore, investment arbitration increased dramatically, and so did the enforcement of crimes against human rights under the European Court of Human Rights. The European Court of Human Rights was transformed into a permanent court with direct access for individuals in 1998.

As an organic outcome, the fragmentation of international law resulted in the multiplicity of international legal regimes and institutions. On the other hand, it was argued that it undermined the authority of universality and disseminated the coherence of practice. Contrarily, history has suggested and sought for the requirement of specialized courts and Tribunals. Specialized courts continue to remain the need of the hour due to the intricate nature of disputes in a global setting. There, nevertheless, exists a doubt over the rationale and support towards fragmentation. A certain school of thought is of the view that fragmentation engenders the sanctity of legal certainty, which is an element of the international rule of law. Furthermore, the multiplicity of institutions, especially of courts and tribunals creates conflicts over potentially overlapping jurisdictions of those courts. Thus, creating conflicts over potentially overlapping jurisdictions of those courts. Furthermore, law-users may exploit the fragmentation (and the diverse institutional outlooks going with it) through forum-shopping and regime-shifting, based on the strategic consideration of which forum and regime will respond best to their claims based on their parochial interest. Forum shopping, in Indian courts, has been condemned and regarded as a deplorable practice by Courts- Union of India & Ors. v. Cipla Ltd. & Ors

One might go to the extent to suggest that, the process of fragmentation would have been organic and inevitable. Moreover, there exist a plethora of dispute resolution mechanisms that enable parties to choose the best institution for dispute settlement. One can draw reference to the case of Timor Leste and Australia and a successful attempt to Conciliation.  Institutions created under the United Nations Convention on the Law of the Sea include International Tribunal for the Law of the Sea, International Seabed Authority, Commission on the Outer Limits of the Continental Shelf. Thus showcasing the plethora of dispute resolution mechanisms envisaged by the legislators of the Convention. When no other procedure for dispute resolution has otherwise been agreed upon then, under Section 2 of Part XV, they are obliged to submit their dispute to either the International Tribunal for the Law of the Sea, the International Court of Justice, an Arbitral Tribunal established according to Annex VII or a special Arbitral Tribunal established according to Annex VIII.

At this junction, one is compelled to wonder about the fate of the dispute when there exists a clash of regimes. This has largely been the case of fisheries. That is because fisheries disputes stand at crossroads of trade and the Law of the Sea. During the trials, the courts have witnessed an overlap between the provisions of the Convention, Fish Stocks Agreement, Food and Agricultural Organisation of the UN, The Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), World Trade Organisation (WTO).

 The Law of the Sea Convention and International Fisheries Treaties were discussed in the Southern Bluefin Tuna Case. The Case demonstrates the problems incurred by the applicability of more than one regulation to a given case. In the case, Japan had argued inter alia that the 1993 Convention on the Conservation of the Southern Bluefin Tuna applied to the case both as lex specialis and lex posterior, excluding the application of the 1982 UNCLOS. The Arbitration Tribunal, however, held that both 1982, as well as the 1993 instrument, were applicable. While the fragmentation of international law is generally considered as a benign practice, the risk of overlapping jurisdictions and potential for serious substantive fragmentation as a result of this procedural fragmentation, should such cases proceed in the future, cannot be ignored.