From Fragmentation to Constitutionalization

This short essay, prepared for a panel on “The Impact of a Wider Dissemination of Human Rights Norms: Fragmentation or Unity?,” explores the connection between two popular, but seemingly contradictory discourses in international law: fragmentation and constitutionalization. After disentangling and categorizing the various types of fragmentation international law may be experiencing, the essay focuses in on one form in particular, the “fragmentation of the legal community.” This most radical version of fragmentation, the essay argues, has spurred a number of responses, many of which suggest the beginnings of a constitutional conflicts regime for international law. The essay ends by suggesting and exploring three types of constitutional conflicts rules already in limited use: (1) constitutional comity rules, (2) constitutional hierarchy rules, and (3) constitutional abstention rules

International Law\u27s Erie Moment

The episode put the question starkly: Who fills the gaps in international law and how? A series of tribunals operating under Chapter 11 of the North American Free Trade Agreement (NAFTA) had adopted broader interpretations of vague treaty language than those recommended by the state parties. In response, government ministers from the three state parties, Mexico, Canada, and the United States, operating through the Free Trade Commission (FTC) established by the treaty, adopted Notes of Interpretation clarifying their view of the treaty\u27s meaning. International tribunals are generally tasked with examining state practice, either to recognize rules of customary international law that state practice may evidence or to discover from subsequent practice the intended meaning of treaty provisions. But when a tribunal\u27s own interpretations conflict with state practice, who wins? Is state practice contrary to a tribunal\u27s decision a breach of international law or a rebuke of the tribunal\u27s view? In the case of NAFTA, the general instruction of the Vienna Convention on the Law of Treaties to look to subsequent agreement and subsequent practice in interpreting treaty provisions was paired with a specific recognition of the FTC\u27s authority to resolve disputes that may arise regarding [the] interpretation or application of NAFTA. Nonetheless, NAFTA tribunals were split on exactly how to regard the Notes of Interpretation and how much respect they should be due. While for some, the Notes provided clear evidence of the parties\u27 intent, for others, they were an improper attempt to subvert due process and the rule of law

Historical American erspectives On International Law

The topic of this year\u27s International Law Weekend, The United States and International Law: Legal Traditions and Future Possibilities, cries out for additional historical perspective

Introduction: Legitimacy and International Courts

Legitimacy and International Courts examines the underpinnings of legitimacy, or the justification of the authority, of international courts and tribunals. It brings together an esteemed group of authors, noted for both their expertise in individual courts, tribunals, or other adjudicatory bodies, and their work on legitimacy, effectiveness, and governance more broadly, to consider the legitimacy of international courts from a comparative perspective. Authors explore what strengthens and weakens the legitimacy of various different international courts, while also considering broader theories of international court legitimacy. Some chapters highlight the sociological or normative legitimacy of specific courts or tribunals, while others address cross-cutting issues such as representation, democracy, independence and effectiveness. This Introduction surveys some of the key contributions of this volume and distills some of the lessons of its varied chapters for the legitimacy of international courts. Parts II and III are largely conceptual in approach, exploring what legitimacy means for each and all of the courts. Part IV takes a more functional approach, exploring how various factors internal or external to particular courts have contributed to those courts’ normative or sociological legitimacy. Part V provides thumbnail summaries of each the chapters that follow

International Law\u27s Erie Moment

The episode put the question starkly: Who fills the gaps in international law and how? A series of tribunals operating under Chapter 11 of the North American Free Trade Agreement (NAFTA) had adopted broader interpretations of vague treaty language than those recommended by the state parties. In response, government ministers from the three state parties, Mexico, Canada, and the United States, operating through the Free Trade Commission (FTC) established by the treaty, adopted Notes of Interpretation clarifying their view of the treaty\u27s meaning. International tribunals are generally tasked with examining state practice, either to recognize rules of customary international law that state practice may evidence or to discover from subsequent practice the intended meaning of treaty provisions. But when a tribunal\u27s own interpretations conflict with state practice, who wins? Is state practice contrary to a tribunal\u27s decision a breach of international law or a rebuke of the tribunal\u27s view? In the case of NAFTA, the general instruction of the Vienna Convention on the Law of Treaties to look to subsequent agreement and subsequent practice in interpreting treaty provisions was paired with a specific recognition of the FTC\u27s authority to resolve disputes that may arise regarding [the] interpretation or application of NAFTA. Nonetheless, NAFTA tribunals were split on exactly how to regard the Notes of Interpretation and how much respect they should be due. While for some, the Notes provided clear evidence of the parties\u27 intent, for others, they were an improper attempt to subvert due process and the rule of law