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! CONFERENCE PROCEEDINGS September 19-20 | Lisbon, Portugal

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TABLE OF CONTENTS

Foreword ........................................................................................................................... 2

The Polysemy of Independent Directors ..................................................................... 4

YUEH-PING (ALEX) YANG

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Globalization in International Tax Law – A Spotlight on the OECD’s BEPS Project .............................................................................................................................. 44

DIANA OSWALD

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Global Financial Governance and Regulation: Challenges and Opportunities Ahead ............................................................................................................................... 67

KELLY CHEN

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The Judicial Reception of Competition Soft Law in the Netherlands and the UK .................................................................................................................................... 87

ZLATINA GEORGIEVA

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The Global Governance Reflex of International Judicial Bodies ........................ 117

HALIL GÖKSAN

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Convergence and Divergence in the EU’s Judicial Cooperation in Civil Matters: Pleading for a Consolidation through a Uniform European Conflict’s Codification ................................................................................................ 175

DENISE WIEDEMANN

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Is «Legal Globalization» the Solution for the Disorientation of Health and Safety at the Workplace Law? .................................................................................... 200

ANA RIBEIRO COSTA

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European Criminal Law as a “Last Obstacle” in the Globalization of Law Within the European Union ...................................................................................... 220

PETR ZARIVNIJ

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Authors .......................................................................................................................... 236

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THE GLOBAL GOVERNANCE REFLEX OF INTERNATIONAL

JUDICIAL BODIES

Halil Göksan

University of Geneva, Faculty of Law

ABSTRACT

Globalization is mostly described as posing new challenges to international law and legal theory. These challenges are the question of soft law, global law, non-state actors’ role in international law, private mechanisms of law making at global level, judicial fragmentation of international law etc.

As a response, international lawyers tended to their long-standing approaches and constitutionalism became international constitutionalism and legal pluralism became global legal pluralism. In other words, old approaches, old machines, old tools were to rescue international law from the diseases of globalization with their ill-adapted global versions. In addition, these old approaches could not work out how to approach to soft law and related soft challenges such as non-state actors, private mechanisms of law making, global governance legal regimes etc. because they only knew hard law. Therefore, they focused on hard challenges such as the fragmentation of international law and related questions of overlapping jurisdictions, conflicting interpretations, forum shopping etc. and ignored or undermined soft challenges of international law.

In this regard, it seems to us that these hard and soft challenges of international law require a different approach and a global governance approach to international law might be a solution as it worked in the discipline of international relations. Our work will demonstrate that there is a “global governance reflex” among international judges and this reflex offers much better solutions to the fragmentation of international law than international constitutionalism or global legal pluralism.

In the light of the above, this paper will first sketch a distinctive understanding of global governance. Secondly it will treat the fragmentation of international law as a hard challenge of international law. In other words, it will demonstrate that the anxieties about the fragmentation issue are a bit exaggerated and things are not as dramatic as described. It will exemplify this point by analyzing the jurisprudence of main international judicial bodies in order to better grasp feasibility, frequency and risks of overlapping jurisdictions, conflicting interpretations etc. This will show how far the idea of a global governance approach to international judicial bodies is feasible. In the literature, a good number of scholars already mentioned and produced

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ideas such as comity, judicial community, dialogue of courts etc. This work will attempt to take these propositions to the next step. A rethinking of these proposals within the concept of global governance will be proposed. And it will be concluded that there is a “global governance reflex” among international judges and a global governance approach to international judicial bodies is the cure to the fragmentation of international law and it actually might be a path towards the idea of global law.

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I. UNDERSTANDING GLOBAL GOVERNANCE

A. Preliminary remarks

This section is entitled as “Understanding Global Governance”. This choice aims to underline the difficulty in grasping what global governance happens to be. In order to better clarify global governance, it is necessary to emphasize on some preliminary remarks. First of all, it is highly important to understand that global governance is a concept. Concepts are one of the most important tools for a social scientist while conducting research.1 As it has been remarked; “the core function of concepts lies in ordering and structuring our observations and experiences in order to allow for general propositions”.2 Without concepts, it would be a huge struggle to conduct even basic researches in the social sciences. Secondly, it is crucial to focus on the significance of the concept rather than to the words that compose it. Let’s take the example of the “Cold War”. The Cold War is a concept that indicates the state of world politics from 1945 to 1990. It means that there was a rivalry between two block countries represented respectively by the Union of Soviet Socialist Republic (USSR) and United States (US). This conflict was cold because actual close arms combat never occurred between these two parties. However, if one tries to explain the concept of the Cold War with a literal explanation, the conclusion would be a war that happened during the winter or a cruel or brutal war. This interpretation of the concept of the Cold War is as much incorrect as using a literal analysis to explain concepts. For sure, every word that composes a concept has a contextual meaning. However, as long as they are used in a conceptual context, their own meanings and contextual significance change. Henceforward, the composition of these words signifies only the meaning of the concept. If one wants to avoid the ambiguity on understanding the concept of global governance, he/she should not miss the idea of “conceptual interpretation”. In this regard, Klaus Dingwerth and Philipp Pattberg believe that, “different ideas about what global governance refers to derive from disagreement about the meaning of both global and governance”.3 Finally, it is important for a concept to define the characteristics of itself once it is applied. This makes understanding the concept and its use easier by the general public and by academics. In this regard, the concept of “Arab spring” is another good example. Once one has learned the significance of Arab spring, the connotation shaped in his/her mind is the process of democratization and the end of dictatorships in most Arab countries. Especially, the choice of the word “spring” also remind us the revolutions of 1848. The latter, also known

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1 K. Dingwerth and P. Pattberg ‘Global governance as a perspective on world politics’ (2006) 12.2 Global governance: a review of multilateralism and international organizations 185, at 186.

2 Ibid. 3 Ibid., at 188.

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as “spring of nations” or “springtime of the peoples”, was a series of political turmoils throughout Europe for democracy and end of aristocracy and royalty. Basically, demands for democracy and end of dictatorships in Arab countries since 2011 is quite similar to what happened in Europe in 1850s. Therefore, the use of the word “spring” makes sense in order to conceptualize developments in Arab countries.

B. Emergence of the concept of global governance

With the end of the Cold War, a time of change has arrived in the

scene of world politics.4 The Commission on Global Governance5 described this transformation by noting that “never before has change come so rapidly, on such a global scale, and with such global visibility”.6 Change in world politics put an end to the Cold War and changed our observations. A new concept that lies in “ordering and structuring our new observations and experiences,” in order to create new general propositions, was more than necessary.7 One of the first concepts that described the world of affairs after the Cold War was the concept of post-Cold War. Even though it is widely used in literature; it does not meet the aforementioned three criteria. It does not reflect changes in world politics and it only defines new concepts by referring to its predecessor. Furthermore, it does not shape at all in the picture of world politics after 1990. For these reasons, it would not become the concept to describe the period after the Cold War. Another suggestion was the concept of “new world order” as proclaimed by George H.W. Bush.8 Even though this concept had some multilateralist perspectives, it was not well received because “the institutions and understandings of multilateralism as they existed at the end of the Cold War have proven inadequate to address and understand the issues and challenges of the post-Cold War”.9 As far as realists and liberal-institutionalists of the 70s and 80s are concerned, it was impossible for them to come up with a concept for an epoch of post-revolution, which they did not expect.10

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4 James N. Rosenau ‘Governance, order, and change in world politics’ in James N. Rosenau and Ernst-Otto Czempiel (eds.), Governance without government: order and change in world politics (Vol.20 Cambridge University Press 1992), 1.

5 Commission on Global Governance ‘Our global neighborhood: The report of the Commission on global governance’ (1995).

6 Ibid. 7 Dingwerth and Pattberg ‘Global governance’ supra note 1, at 188. 8 George Bush. Toward a new world order. US Department of State, Bureau of Public

Affairs, Office of Public Communication, 1990. 9 Charlotte Ku and Thomas G. Weiss, ‘Preface’ in Charlotte Ku and Thomas G.

Weiss (eds.), Toward Understanding Global Governance – The international law and international relations toolbox (2009), at viii.

10 Thomas G. Weiss, ‘Governance, good governance and global governance: conceptual and actual challenges’, Third world quarterly 21.5 (2000): 795, at 796.

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As soon as the concept of global governance is introduced, it is relatively easy to notice that it meets three requirements and also has a deserved and interesting charm.11 Global governance is a concept; the words that compose it generate a “conceptual meaning” which creates intentionally intended uses. Initially, the concept of global governance was first recognized in the works of James N. Rosenau in 1992 even though he originally named it as “governance without government”.12 In his article though, he never used the term “global governance”. Yet, his idea was to find a concept to grasp the current conditions of world politics. He explained that the goal of “governance without government” was to “clarify the nature of global order and the process through which governance occurs on a worldwide scale”.13 He listed some important changes in the world that required new concepts such as the decline of hegemons, disappearance of boundaries, increase of social movements, weakening of military alliances, globalization of economies, shortening of political distances with technologies, and mushrooming of global interdependencies. 14 The Commission on Global Governance has made similar remarks by underlining that the world of today is so much different than the time when the United Nation system was created.15 The concept became termed with the establishment of the Commission on Global Governance in 1993. With the publication of the Commission’s report Our Global Neighborhood16 in 1995 and with the appearance of first issue of the Journal Global Governance during the same year, the concept “global governance” became famous. Since then, many people use it in order to describe world affairs after 1990.

The question remains, what is global governance? For Rosenau “to anticipate the prospects of global governance” was considered a difficult challenge or even impossible according to “one's appreciation of nuance and one's tolerance of ambiguity”.17 The commission attempted to define it as vaguely as possible so as to include basically every management of affairs.18 For Larry Finkelstein, it appeared to be virtually anything in 1995.19 By 2009, Thomas J. Biersteker was saying that, “global governance is a permissive concept in the sense that it gives one license to speak or write about many

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11 Thomas G. Weiss and Ramesh Thakur, Global governance and the UN: an unfinished journey Indiana University Press, 2010, at 29.

12 Rosenau, ‘Governance, order and change’ supra note 4. 13 Ibid at 1. 14 Rosenau, ‘Governance, order and change’ supra note 3, at 1. 15 Commission on global governance supra note 5 at 2. 16 Commission on global governance supra note 5. 17 James N. Rosenau, ‘Governance in the Twenty-first Century’ (1995) 1 Global

Governance 13 at13. 18 Commission on global governance supra note 5 at 2. 19 Lawrence S. Finkelstein, ‘What is global governance’ (1995) 1 Global

Governance 367, at 367.

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different things”.20 Twenty years of works and research on global governance has still not been enough to create a precise and widely agreed upon definition. Yet, the term has become so popular not only in academic writings, but also in the media and among the general public. This is because global governance is the best term to explain what is going on in world politics. The general situation in world politics is as ambiguous as the concept of global governance. While the balance of world politics changes from day to day, global governance evolves accordingly. Contrary to this growing interest to the concept of global governance among international relations’ specialists, international lawyers did not give much thought about possible solutions of this approach to challenges of international law in 21st century. In this regard, a good number of methods and approaches to international law have been developed.21Critical legal studies, legal pluralism, and constitutionalism might be mentioned among them. However, a global governance approach to international law is inexistent. We believe that this approach, that proved its relevance in the discipline of international relations, also offers effective solutions to challenges of international law. Following chapters will mainly focus on the usefulness of the concept of global governance to international law.

C. Misunderstanding about the concept of global governance

One of the main misunderstandings about the concept of global

governance is due to the difference between “global governance lata” and “global governance feranda”. While global governance lata frames the actual state of it, global governance feranda indicates how it should be. As there is an important difference between them and every day the former is approaching to the latter, one must update their understanding of global governance over time. For example, at the time that the Commission’s report was published, the International Criminal Court was part of global governance feranda.22 But today, it is in the framework of global governance lata. Similarly today’s global governance is entirely different than that global governance before the sub-prime crisis. This categorization also resonates with the differentiation made by Klaus Dingwerth and Philipp Pattberg. They similarly differ the use of global governance as “an analytical concept attempts to capture the reality of contemporary world politics” than its use as “an hegemonic discourse”.23 Ulrich Brand also underlined the importance of this distinction as the following: !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! !!!!!!!!!!!!!!!!!!!!!

20 Thomas J. Biersteker, ‘Global Governance’ in Myriam Dunn Cavelty and Victor Mauer (eds.) Routledge Companion to Security, New York and London: Routledge Publishers, (2008).

21 Annie-Marie Slaughter and Steven R. Ratner, “Appraising the methods of international law: A prospectus for readers” Am. J. Int'l L. 93 (1999): 291, at 296ss.

22 Commission on global governance supra note 5. 23 Dingwerth and Pattberg ‘Global governance’ supra note 1 at 189.

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“There is an important difference, however, between the largely analytical use of the concept by Rosenau and the normative meaning of Global Governance in many other contributions. The analytical version uses the concept in order to understand the changing political structures and processes, whereas the normative contributions intend to sketch out the possibilities for desirable developments without taking into account systematically the limits”.24

Consequently, it is highly important to identify which kind of global governance we are talking about before making any analysis on the concept of global governance. In the framework of this article, we will focus primarily on “how things are” rather that “how they should be”. Consequently, the global governance that will be cited in this article will only signify global governance lata.

D. Global governance and international law’s challenges

Globalization is mostly described as posing new challenges to

international law and to legal theory.25 It has its repercussions in every aspects of human life, as it has on international law. Therefore, it requires some changes to make international law up to date. It has two main but quite opposite impacts on international law. First, one is the horizontal/vertical inter-connectedness and relatedness between different actors/situations that is handled more and more ineffectively by an international legal system. The second one is the specialization and autonomization of the parts of a whole, which has been defined as “functional differentiation” by sociologists.26 Let’s take and enrich the example of the “transport of hazardous chemicals at sea” of Koskenniemi.27 As he illustrated:

“This can be conceptualized at least through half a dozen vocabularies accompanied by the same number of forms of expertise and types of preference: law of trade, law of

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24 Ulrich Brand, ‘Order and regulation: Global Governance as a hegemonic discourse of international politics?’ Review of International Political Economy 12.1 (2005): 155-176, at 159.

25 Gralf-Peter Callies, and Moritz Renner, “Between law and social norms: The evolution of global governance” Ratio Juris 22.2 (2009): 260-280, at 260; Roger Cotterrell, “Transnational communities and the concept of law”, Ratio Juris 21.1 (2008): 1-18 at 1.

26 International Law Commission, Fragmentation of International Law. Problems caused by the Diversification and Expansion of International Law, (Report of the Study Group of the International Law Commission, finalised by Martti Koskenniemi) UN Doc A/CN4/L682 (13 April 2006), at 11.

27 Martti Koskenniemi, ‘The politics of international law–20 years later’ European Journal of International Law 20.1 (2009): 7, at 11.

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transport, law of the environment, law of the sea, ‘chemical law’, and the law of human rights”.28

Actually, the evaluation that gave birth to this consequence is not just only some new vocabularies in different and specific new areas of international law. The International Court of Justice is no longer the only international tribunal where an international case such as the transportation of hazardous chemicals can be brought. Individuals might pursue human right courts if there have been some violations of human rights during the transportation. International Tribunal for Law of the Sea might also hear the case. It can even go to the dispute settlement mechanism of World Trade Organization if there have been some issues regarding tariffs, services or intellectual property. A possibility to bring the case before an arbitral tribunal goes without saying. This means that not only every field of international law has more and more of their own vocabularies and principles but they have also their own tribunals that deal with international law from their perspectives. In other words, the risk to have; two or more tribunals that have competing jurisdiction in the same dispute, different interpretations from tribunals for the same principle of international law, contradictory judgments, forum shopping even situations of self-contained regimes, are high and it causes anxieties and fear about the fragmentation of international law.

This only demonstrates the problematical situations of international law in the ambit of hard law, and it doesn’t end there. No one would be shocked to hear the existence of an Association of Transporters of Chemical Materials that regulates relations among its member concerning these kinds of issues through rules and principles adopted by the General Assembly of the Association. This association might even offer an appropriate dispute settlement system to its member concerning conflicts among them. This is the part of the problem in the context of soft law. Can these rules and principles be considered as “law”? Where to put the “case law” produced by the dispute settlement mechanism of this kind? Similarly to the fear and anxieties about the unity of international law described above, the problem here is about to answer the famous question of “what is law”. Is there a need to reconsider “what is law” in the 21st century? “Is it necessary to conceptualize law in new ways because of changes in the conditions and forms of regulation brought about by processes associated with globalization?”29 This situation also creates fear and anxieties about legal theory, international legal order, global law etc.

In this regard, it seems to us that the concept and the theory of global governance might be quite useful. Global governance is usually treated within the disciplines of international relations. “Almost any process or

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28 Ibid. 29 Roger Cotterrell, “Transnational communities and the concept of law”, Ratio

Juris 21.1 (2008): 1-18 at 1.

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structure of politics beyond the State – regardless of scope, content, or context – has within the last few years been declared part of a general idea of global governance”.30 For this reason, the concept of global governance also has repercussion on international law, international trade and finance, international courts and tribunals, as well as transnational movements. However, even the “legalization” of global governance, for example, is discussed by political scientists rather than academic lawyers”.31 Gralf-Peter Calliess and Moritz Renner underline this lack of interest of academic lawyers regarding to global governance as following:

“Globalization’s challenges, however, go to the very core of legal discipline. On the one hand, it seems that in the ambit of global governance there is a trend towards non-legal forms of regulation. … On the other hand, however, we can witness the evolution of supposedly legal and semi-legal forms of regulation beyond the nation-state, which are often referred to as “private regimes” or “hybrid regimes”. While both these developments are readily conceptualized by economics- and political science-based approaches that are labelled as “governance without government” or “economic governance”, legal theory has largely failed to grasp the intricate relationship between law and social norms in the context of global governance regimes that might even necessitate a reconsideration of the concept of law itself.32

In this respect, we believe that global governance theory may offer suitable solutions to the fragmentation of international law and to the difficulties about the reconceptualization of law in times of globalization. We should name the former situation as hard challenges of international law and the latter one as soft challenges of international law. While economic theories use global governance to better focus on efficiency with an actor-based perspective33 or political theories present global governance to explain what is going on in world affairs, we, as international lawyers, will take advantage of it in order to look for answers to our hard and soft challenges of international law by taking effectively into account “law’s own rationality” and its other idiosyncratic characteristics.34 Thus, the concept of global governance might end up being a bridge between disciplines or a common denominator of

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30 Dingwerth and Pattberg ‘Global governance’ supra note 1 at 185. 31 Gralf-Peter Callies, and Moritz Renner, “Between law and social norms: The

evolution of global governance” Ratio Juris 22.2 (2009): 260-280, at 260; Abbott, Kenneth W., et al, “The concept of legalization” International organization 54.3 (2000): 401-420.

32 Gralf-Peter Callies, and Moritz Renner, “Between law and social norms” at 261. 33 Ibid. at 260. 34 Ibid.

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disciplines.35

E. Clarification about the terminology

Before starting to analyze any question related to the topic of this work, it seems indispensable to enlighten the significance of some terms that will be often used. First of all, as Cesare P.R. Romano has explored it in detail, there is no common understanding about the meaning of the terms “International Courts”, “International Tribunals”, “International Courts and Tribunals”.36Following his extensive explanations, this article will also use the term “international judicial bodies” as synonyms of “international judicial institutions” and “international judicial organs”. 37 Secondly, as two prominent international judges have underlined, “the multiplication of specialized tribunals is, by itself, a healthy phenomenon. Its description by the term “proliferation,” with its negative connotations, is misleading”.38 Inspired by these words and thoughts, the term “multiplication of international judicial bodies” will be used in the framework of this article to refer to the increasing number of international judicial bodies during the last two decades. Thirdly, terms such as “fragmentation of international law”, “fragmentation of international legal system” and “fragmentation issue” are often used to refer to this falling-apart of international law. In this work, all these terms share the same connotation and refer to the very exact problems.

II. FRAGMENTATION AND INTERNATIONAL JUDICIAL BODIES

A. Preliminary remarks

One can describe the last two decades as globalization’s epoch. During this epoch, one of the developments that concern international law the most is the rapid increase in the number of judicial organs operating at international level. The Project on International Courts and Tribunals (PICT) identified that more than 125 “international judicial bodies” and “quasi-judicial, implementation control and other dispute settlement bodies” have been created since 1868 (when the first American-Mexican Claims

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35 Kees van Kersbergen, and Frans van Waarden. ‘Governance as a bridge between disciplines: Cross disciplinary inspiration regarding shifts in governance and problems of governability, accountability and legitimacy’ (2004) 43.2 European journal of political research 143.

36 Cesare PR. Romano, ‘The Proliferation of International Judicial Bodies: The Pieces of the Puzzle’ NYUJ Int'l L. & Pol. 31 (1998): 709, at 712.

37 Ibid at 713. 38 Georges Abi-Saab, ‘Fragmentation or unification: Some concluding remarks’

NYUJ Int'l L. & Pol. 31 (1998): 919, at 925; Rosalyn Higgins, ‘Plenary Address’ Am. Soc'y Int'l L. Proc. 100 (2006): 387, at 390.

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Commission was created).39 Additionally, as a result of these extraordinary developments, International Law Commission decided to examine the fragmentation of international law and published their report in 2006.40 “The ILC, however, did not take up the institutional dimensions of fragmentation of international law, having excluded that topic from the beginning”.41 Nevertheless, the issues of the relationship between these judicial institutions as well as the conflicting jurisdictions were actually the most critical points of these developments. A rich literature is available on these points, as it will be analyzed throughout the following sections. We consider this issue of fragmentation/unity of international law as a hard challenge of international law, because all newly established international judicial bodies have created according to the existing (classical) understanding of international law. Therefore, the problem that this situation is directly causing is a hard law problem and it is a hard challenge of international law. In this regard, this work will simply attempt to reconsider existing propositions to this challenge through the glass of global governance and will try to show how some of the existing standpoints fit perfectly in global governance’s perspective. It seems that a “global governance reflex” exists among most of the international judges and this reflex might be the solution to this hard challenge of international law.

B. Typology of fragmentations

A good number of causes are listed among the reasons of the

fragmentation of international law. The multiplication of international judicial bodies is only one of them. In this regard, the scope of this work will be limited to the effects of this multiplication to the fragmentation issue. This chapter will survey the most important international judicial bodies and their relationship with each other from the perspective of three fragmentatio. An international treaty or a statute, which establishes an international judicial body, also determines its jurisdiction. When rights or obligations are available under more than one treaty or statute, a competing jurisdiction situation is at stake. This level of conflict is classified as a fragmentatio stricto sensu. This is the simplest fragmentation. Secondly, even though jurisdictions of some tribunals do not overlap, these tribunals could have different interpretation for the same principles of international law. As there is no supreme tribunal at international level, which can determine which one is right and which is wrong, these different interpretations might fragment

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39 Suzannah Linton and Firew Kebede Tiba, “The International Judge in an Age of Multiple International Courts and Tribunals, Chi. J. Int'l L. 9 (2008): 407, at 408-409; See Project on International Courts and Tribunals, The International Judiciary in Context, available online at <http://www.pict-pcti.org/publications/synoptic-chart/synop-c4.pdf> (visited January 5, 2014).

40 International Law Commission, Fragmentation of International Law, supra note 26. 41 Suzannah Linton and Firew Kebede Tiba, “The International Judge in an Age of

Multiple International Courts and Tribunals, Chi. J. Int'l L. 9 (2008): 407, at 410-411.

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international law. These situations of conflicting interpretation are named as fragmentatio lato sensu. The last level of the fragmentation of international law is the notion named “self-contained regimes”.42 Accordingly, specialized area of international law such as international trade law, international human rights law, international criminal law, by developing their own principles through their own tribunals, they will separate themselves from general principle of international law. In the classification, this situation of self-contained regimes is entitled as fragmentatio amplo sensu. In the following paragraphs, these fragmentatio will be treated in the framework of main international judicial bodies. However, all type of fragmentatio are not relevant for all tribunals. For example International Criminal Court’s jurisdiction does not compete with any other jurisdiction. For this reason, under the sub-chapter of Criminal Courts, only fragmentatio lato sensu and fragmentatio amplo sensu will be analyzed. It goes for other sub-chapters.

C. International Court of Justice (ICJ)

As soon as competing jurisdiction issues are at stake, ICJ has two

kinds of jurisdiction, namely, contentious and advisory jurisdiction, according to respective article 36 and article 65 of its statute.43 In the framework of its contentious jurisdiction,44 the ICJ is entitled to exercise its jurisdiction on any international legal dispute without any subject matter limit.45 As soon as its personal jurisdiction is concerned, there are three options in order to bring a case before the ICJ. First, according to article 36, paragraph 1 of its statute; the ICJ has jurisdiction if States refer to it by a special agreement. Secondly, parties to a treaty/convention can appoint the ICJ to decide on any dispute between them arising from the treaty or convention. Thirdly, under the optional clause of article 36 paragraphs 2-5, States can unilaterally accept the compulsory jurisdiction of the ICJ.

In the case of a special agreement, as the agreement is concluded between parties in order to bring the case before the ICJ, States would not have concluded an agreement if they had had the intention to look for other international judicial bodies. In other words, the only way to have a conflicting jurisdiction in this situation is if parties decide to go in front of the ICJ to avoid another Court, which would have been competent. Therefore, there is a tiny chance that a conflicting jurisdiction occurs between the ICJ and an international judicial body in the case of a special agreement. Secondly, in the situation where a treaty or a convention refer to

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42 Bruno Simma, ‘Self-contained regimes’ Netherlands Yearbook of International Law 16.1 (1985): 111.

43 Statute of the International Court of Justice, United Nations Charter, 26 June 1945, 1 UNTS XVI, Annex I.

44 ICJ’s advisory jurisdiction does not have binding effects. Therefore, advisory jurisdiction is outside of this work.

45 Ibid art. 36 (1).

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the ICJ as the Court to decide on any disagreement between parties, a conflicting jurisdiction may occur according to the text of that treaty or convention. There will not be a conflicting jurisdiction if the ICJ is the only court nominated by treaty or convention. If fork in road method – which is more commonly used in the framework of investment treaties46 – is opted in the treaty or convention, there will not be a problem as well. However, if the treaty or convention provides more than one means for the settlement of the dispute as in the case of the United Nations Convention on the Law of the Sea (UNCLOS) article 28747, a jurisdictional conflict may occur among international judicial bodies as happened in the MOX plant case between ICJ and International Tribunal for Law of the Sea (ITLOS) as well as European Court of Justice (ECJ).48

Thirdly, in the situation under the optional clause, the multiplication of international judicial bodies does not create conflicting jurisdiction between ICJ and other international judicial bodies in practical terms. First of all there are only 69 countries that recognize the jurisdiction of the Court as compulsory49. Moreover this is for the situation where a dispute arises among these 69 countries not with the remaining 124 countries, entitled as “networks of engagements”,50 which statistically diminish the number of cases that can be brought before the ICJ. 51 In addition, as the States’ consents to the ICJ’s jurisdiction are unilateral declarations under the article 36(2), the Court might need to establish that there is a consensual bond between two declarations.52 This situation also decreases the number of cases before ICJ. Furthermore, 21 among these 69 countries are European Union (EU) Member States. Apart the famous Continental Shelf Case53 and recent Jurisdictional Immunities of the State Case54 intra-EU disputes before the ICJ are

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46 Christoph Schreuer, ‘Travelling the BIT route: of waiting periods, umbrella clauses and forks in the road’, (2004) 5 J World Investment & Trade 231, at 239.

47 United Nations Convention on the Law of the Sea (UNCLOS), 21 (1982) ILM 1261.

48 See infra note 64 and 66. 49 ‘Declarations recognizing the jurisdiction of the Court as compulsory’

http://www.icj-cij.org/jurisdiction/index.php?p1=5&p2=1&p3=3 accessed on October 28, 2013

50 ICJ, Case of Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. the United States), Jurisdiction and Admissibility, Judgment, ICJ Reports 1984, at 392 and 418.

51 Stanimir A. Alexandrov, ‘The Compulsory Jurisdiction of the International Court of Justice: How Compulsory Is It?’ Chinese journal of international law 5.1 (2006): 29-38, at 33.

52 ICJ, Fisheries Jurisdiction Case (Spain v. Canada), Jurisdiction, Judgment, ICJ Reports 1998, at para. 46.

53 ICJ, North Sea Continental Shelf Cases (Federal Republic of Germany v. Denmark; Federal Republic of Germany v. the Netherlands), ICJ Reports 1969.

54 ICJ, Jurisdictional Immunities of the State (Germany v. Italy: Greece Intervening), Judgment, ICJ Reports 2012.

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the exception.55 In both of these cases, any EU dimension was not involved which therefore excludes an eventual conflicting jurisdiction.56 As it will be explained in the following section, article 344 of the Treaty on the Functioning of European Union (TFEU)57 prohibits EU Member States to take cases, which involve Community Law to other dispute settlement mechanisms.58

Among the remaining 48 countries, there are a good number of small States and smallest States, which either would not normally have an affair at ICJ or would not afford it. 59 Moreover, some of these States made reservations while consenting and there is no tendency among States to greater adherence for political reasons.60 In addition, approximately 90% of the ICJ’s work consists on the cases about aerial incidents, border disputes, diplomatic relations, use of force and property.61 ICJ has become some sort of international tribunal of “Statehood” during the last decades and the multiplication of international bodies did not produce another international judicial body that has a jurisdiction on these questions. Thus, it is quite rare that ICJ’s jurisdiction would overlap with other international judicial bodies under its optional clause of article 36, paragraph 2-5 of its statute.

In conclusion, the genuine situation of fragmentio stricto sensu for the ICJ is when a treaty provides to contracting parties more than one dispute settlement means; among them one is the ICJ. Actually this is quite self-evident and until now there was not a spoiled child among the States who asked for all. Concerning a situation of fragmentio lato sensu in the framework of the IJC, it will be analyzed below under the section F on criminal courts.

D. European Court of Justice (ECJ)

Articles 273 and 344 of TFEU regulate disputes among its Member

States. Accordingly, the European Court of Justice has jurisdiction in any dispute between Member States of the EU, which relates to the subject matter of EU Treaties. Member States undertake not to submit these disputes to any other methods of settlement other than those provided for therein. These dispositions clearly establish an exclusive jurisdiction for the !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! !!!!!!!!!!!!!!!!!!!!!

55 Frank Hoffmeister, ‘The European Union and the Peaceful Settlement of International Disputes’ Chinese Journal of International Law 11.1 (2012): 77, at 84.

56 ICJ, Press Release No. 2008/44 of 23 December 2008. 57 Consolidated version of the Treaty on the Functioning of European Union

[2010] OJ C83/47. 58 See infra note 64 and 66. 59 Among others, one can mention, Barbados, Botswana, Djibouti, Guinea-Bissau,

Lesotho, Malawi, Mauritius and Togo. 60 Aloysius P. Llamzon, ‘Jurisdiction and Compliance in Recent Decisions of the

International Court of Justice’ European Journal of International Law 18.5 (2007): 815-852, at 817.

61 Eric Posner, ‘The Decline of the International Court of Justice’ U Chicago Law & Economics, Olin Working Paper 233 (2004), at 3.

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ECJ and for intra-EU Members disputes. For this reason, as far as intra-EU Member States disputes are concerned, a conflicting jurisdiction between the ECJ and the ICJ becomes theoretically impossible. In the framework of WTO, the EU is a member with a single customs union and a single trade policy and tariff. Therefore an intra-EU dispute at WTO is out of the question. However, there is a good number ECJ’s decision on the possibility of WTO dispositions’ direct effect in European legal system.62 Even if these cases are important for the legal relationship between WTO and the EU as it is outside of this inquiry and here is no need to go any further. Another conflicting jurisdiction theoretically possible is between an Arbitral Tribunal established under the UNCLOS and ECJ, which was represented and settled through the Mox Plant63 case. In that situation, following Ireland’s action to take the case before the UNCLOS Arbitral Tribunal, the European Commission brought the case before ECJ, for a violation of the Article 344 TFUE (art. 292 EC). ECJ decided that as the EU had signed UNCLOS as a mixed agreement, it was a part of community legal order and community law was largely justified.64 Consequently, ECJ declared its exclusive jurisdiction and the UNCLOS Arbitral Tribunal retired.65

It can be concluded that the possibility of having a fragmentatio is negligible between a tribunal that has general regional adjudication and other international tribunals that have specific adjudication. If it happens, it might easily be resolved.

E. Dispute Settlement Bodies on Trade Law: WTO, NAFTA and

MERCOSUR

1. WTO

The World Trade Organization does not have a court of justice. Especially, before 1994 in the framework of the General Agreement on Trade and Tariffs system (GATT), every Panel decision was supposed to be adopted by a Dispute Settlement Body (DSB) in order to have judicial effects.66 To give an administrative body the last word on judicial decision is not compatible with the independence of a judicial body. Having this in

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62 John Errico, ‘ The WTO in the EU: Unwinding the Knot’ Cornell Int'l LJ 44 (2011): 179.

63 ECJ, Commission of the European Communities v Ireland (MOX plant case) (C- 459/03) [2006] E. C. R. I-4635.

64 Nikolaos Lavranos, ‘Concurrence of Jurisdiction between the ECJ and other International Courts and Tribunals’ (2005): 57, at 74.

65 International Tribunal for the Law of the Sea (ITLOS), The Mox Plant case (Ireland v. United Kingdom), Suspension of proceedings on jurisdiction and merits, and request for further provisional measures, 42 (2003) ILM 1187 at para. 28.

66 ‘Historic development of the WTO dispute settlement system’, < http://www.wto.org/english/tratop_e/dispu_e/disp_settlement_cbt_e/c2s1p1_e.htm> accessed on 30 October 2013.

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mind, negotiators agreed to increase the independence of DSB’s judicial decisions at the Uruguay Round.67 Instead of changing the whole system and creating a WTO Court of Justice, the Marrakesh Agreement only replaced the idea of positive consensus with a negative one.68 This meant that, in GATT’s dispute settlement system, the respondent party was able to block the adoption of a Panel Report because its consent was also required in order to adopt the report.69 However, with negative consensus, a report is automatically adopted if all contracting parties do not agree to not adopt the report in 30 days.70 For this reason, DSB is most of the time referred to as a quasi-judicial system.71

Contrary to ICJ, DSB does not have a general adjudication. Its jurisdiction is limited to the covered agreements, which are listed in the Appendix 1 of the DSU.72 Another difference is that WTO Member States may not escape DSB’s adjudication while UN Member States can avoid ICJ’s jurisdiction. While WTO Member States are entitled to bring a WTO related case before ICJ (as all these agreements are concluded according to the international law), only WTO related disputes could be brought before DSB. In addition, article 23 of the DSU provides an exclusive jurisdiction of WTO DSB for all disputes arising under the WTO covered agreements such as the following:

“When Members seek the redress of a violation of obligations or other nullification or impairment of benefits under the covered agreements or an impediment to the attainment of any objective of the covered agreements, they shall have recourse to, and abide by, the rules and procedures of this Understanding.”

This article establishes that when members “seek the redress of a violation” of a WTO-covered agreement the WTO DSB is compulsory.73 However, in conformity with article 23.2(a) of DSU, there is not an

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67 ‘Major changes in the Uruguay round’, < http://www.wto.org/english/tratop_e/dispu_e/disp_settlement_cbt_e/c2s2p1_e.htm#fnt1> accessed on 30 October 2013.

68 WTO, Understanding on Rules and Procedures Governing the Settlements of Disputes, Marrakesh Agreement Establishing the World Trade Organization, Annex 2, 15 April 1994, 33 (1994) ILM 1226 [hereinafter DSU].

69 See supra note 67. 70 DSU, Article 17.14 supra note 68. 71 Claus-Dieter Ehlermann, ’Experiences from the WTO Appellate Body’. Tex. Int'l

LJ 38 (2003): 469, p. 479 72 DSU supra note 68. 73 Tim Graewert, ‘Conflicting Laws and Jurisdictions in the Dispute Settlement

Process of Regional Trade Agreement and the WTO’ Contemp. Asia Arb. J. 1 (2008): 287, at 294.

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exclusivity of jurisdiction about the “interpretation” of covered agreements.74 In addition, WTO DSB offers more procedural advantage to specified parties than ICJ. Time-consuming oral and written proceedings as well as deliberation of more than 15 judges are considered inefficient and render ICJ unattractive to Member States.75 Speedy dispute settlement procedures with the possibility of an appellate review make WTO DSB a clearly better adjudication option than ICJ.76 In light of these arguments, it would not be a logical choice for States to opt ICJ over WTO DSB. However, it would be highly unusual to have an identical case before ICJ and DSB at the same time.

An actual fragmentio stricto sensu occurred though between UNCLOS and WTO in the Swordfish dispute between the EU and Chile. On one side the EU was invoking article V of the GATT in order to get docking access for its vessels in Chilean ports. This was before the WTO DSB and any appellate panel was established.77 On the other side, Chile was relying on the UNCLOS agreement while prohibiting the access of EU vessels to its ports and decided to bring the case before ITLOS.78 However, shortly after, EU and Chile agreed to suspend legal proceedings, which assured the happy ending of this disagreement.79

In consequence, taking into account its specific structure and its determined field, it is rare to have fragmentatio between the WTO DSB and other international judicial bodies. However, fragmentatio are more relevant about the relationship between the dispute settlement mechanisms of Free-Trade Agreements (FTA) and WTO DSB.

2. NAFTA and MERCOSUR

Article 23 of the DSU establishes an exclusive jurisdiction of DSB

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74 Yuval Shany, The competing jurisdictions of international courts and tribunals. Oxford: Oxford University Press, 2003 at 184.

75 Ernst-Ulrich Petersmann, “Constitutionalism and International Organizations” Nw. J. Int'l L. & Bus. 17 (1996): 398, at 462.

76 Ernst-Ulrich Petersmann, The GATT/WTO Dispute Settlement System: International Law, International Organizations and Dispute Settlement. Vol. 23. Martinus Nijhoff Publishers, 1997, at 240-44.

77 WTO, ‘Chile – Measures Affecting the Transit and Importation of Swordfish’ WT/DS193/2, Request for the Establishment of a Panel by the European Communities, 6 November 2000.

78 ITLOS, ‘Case Concerning the Conservation and Sustainable Exploitation of Swordfish Stocks in the South-Eastern Pacific Ocean’, Order 2000/3, 20 December 2000, Constitution of Chamber, available at http://www.un.org/Depts/los/ITLOS/SWORDFISH_STOCKS.htm.

79 See for a more detailed analyses, Marcos A. Orellana, ‘The Swordfish Dispute between the EU and Chile at the ITLOS and the WTO’ Nordic Journal of International Law 71.1 (2002): 55-81, at 65.

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for violations of WTO-covered agreements.80 However, similar dispositions to WTO agreements exist also in FTAs concluded between WTO members, as in the example article 301 of the North Atlantic Free-Trade Agreement81 (NAFTA).82 This means that for the same violation, a judicial remedy is available by two different jurisdictions. However, Article 23 of the DSU cannot prevent NAFTA Member States from addressing NAFTA’s dispute settlement mechanism because “in this context, the NAFTA panels do not determine whether WTO obligations between the NAFTA members have been violated; since those provisions are incorporated into the NAFTA, they solely decide upon obligations under the NAFTA”.83 Nevertheless, as it has been underlined:

“Even if it may not be practical or useful for a NAFTA party to duplicate in the WTO a dispute that should be handled in NAFTA, there does not seem to be any legal impediment against such a possibility, since, legally speaking, the NAFTA and WTO panels would be considering different "matters" under different "applicable law," providing for different remedies and offering a different implementation and retaliation mechanisms”.84

In this regard, two cases have been brought to the DSB, one concerning NAFTA and the other concerning the Southern Common Market (MERCOSUR).85 In the Mexican Soft Drinks case86, the position of Mexico was to exclude DSB in favor of the NAFTA. As a last resort the Appellate Body upheld the decision of the Panel that “under the DSU, it ha[d] no discretion to decline to exercise its jurisdiction in the case that ha[d] been brought before it”.87 In other words, AB established its supremacy !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! !!!!!!!!!!!!!!!!!!!!!

80 Which is different than the exclusive jurisdiction of ECJ. See Tim Graewert, ‘Conflicting Laws and Jurisdictions in the Dispute Settlement Process of Regional Trade Agreement and the WTO’ Contemp. Asia Arb. J. 1 (2008): 287.

81 North American Free Trade Agreement (NAFTA), 32 ILM 289, 605 (1993) [hereinafter NAFTA].

82 Kwak, Kyung, and Gabrielle Marceau, ‘Overlaps and conflicts of jurisdiction between the World Trade Organization and regional trade agreements’ Can. YB Int'l L. 41 (2003): 83.

83 Tim Graewert, ‘Conflicting Laws and Jurisdictions in the Dispute Settlement Process of Regional Trade Agreement and the WTO’ Contemp. Asia Arb. J. 1 (2008): 287, at 294-295.

84 Ibid, at 89. 85 Mercado Comùn de Sur (MERCOSUR), Treaty establishing a common market

between the Argentine Republic, the Federative Republic of Brazil, the Republic of Paraguay and the Eastern Republic of Uruguay (also known as the Treaty of Asuncion), 30 (1991) ILM 1044.

86 WTO, Appellate Body Report, Mexico – Tax measures on soft drinks and other beverages, WT/DS308/AB/R, 6 March 2006.

87 Ibid at para. 57.

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indirectly by not saying that other dispute settlement mechanisms were inferior to DSB, but instead by giving the message that it would not renounce its jurisdiction just because a similar case was pending, decided, or had been covered by a dispute settlement mechanism under a FTA.

AB made its opinion clearer in the following Brazilian Tyres dispute.88 A dispute between Uruguay and Brazil ended with a MERCOSUR decision, which obliged Brazil to change its legislation.89 The EU did not welcome the new text and they ended up before the DSB basically for the validity of “MERCOSUR exemption”. A WTO panel decided that the judgment of the MERCOSUR Arbitral Tribunal was justified under Article XXIV GATT.90 However, AB did not follow this reasoning. It considered that “MERCOSUR exemption” constituted arbitrary or unjustifiable discrimination under the chapeau of Article XX GATT.91

By reviewing MERCOSUR’s decision, a WTO Appellate Body established clearly its superiority over any FTA dispute settlement mechanisms. Nikolaos Lavranos concluded that “other dispute settlement bodies must issue their decisions in conformity with WTO law and Appellate Body jurisprudence, or otherwise face the possibility of being reviewed and revised by the WTO Appellate Body”.92

In this regard, Lavranos also argued that this attitude of supremacy exercised by the WTO Appellate Body was probably not the best solution for jurisdictional conflicts between FTAs’ dispute settlement mechanisms and WTO DSB.93 However, the attitude of AB seems logical when one sees the bigger picture. First of all, statistics show that the number of cases brought to a WTO Dispute Settlement system and reporting panel or an AB is slightly decreasing. However, there are still approximately 20 cases a year initiated at WTO.94 Moreover, due to the complexity of disputes in terms of the number of claims, the number of agreements, and the number of parties involved, “the Appellate Body has requested the DSB to extend timeframes !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! !!!!!!!!!!!!!!!!!!!!!

88 WTO, Appellate Body Report, Brazil – Measures Affecting Imports of Retreaded Tyres, WT/DS322/AB/R, 3 December 2007.

89 MERCOSUR Tribunal, Uruguay v. Brazil (Remoulded Tyres) 9 January 2002, available at: http://www.mercosur.int/msweb/portal%20intermediario/pt/controversias/VI%20LAUDO.pdf.

90 WTO, Panel Report, Brazil – Measures Affecting Imports of Retreaded Tyres, WT/DS322/R, 12 June 2007.

91 WTO, Appellate Body Report, Brazil – Measures Affecting Imports of Retreaded Tyres WT/DS322/AB/R, 3 December 2007.

92 Nikolaos Lavranos, ‘The Solange-Method as a Tool for Regulating Competing Jurisdictions among International Courts and Tribunals’ Loy. LA Int'l & Comp. L. Rev. 30 (2008): 275.

93 Ibid. 94 Horn, Henrik, Louise Johannesson, and Petros Mavroidis, ‘The WTO Dispute

Settlement System 1995-2010: Some Descriptive Statistics’ (2011) IFN Working Paper No. 891 http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2094281 accessed October 28, 2013.

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by delaying adoption or the start of an appeal of a panel report under Article 16.4 of the DSU”.95 Being obliged to accomplish their report under such a limited timeframe, the WTO Panel or AB would not mind having a FTA dispute settlement mechanism to settle a case in conformity with WTO law. Secondly, it does not appear to be a great idea to define the dominant attitude of AB as a non-cooperative solution. Supremacy of a universal mechanism over regional mechanisms is not only logical but also an end to the ambiguity about the conflicts of jurisdiction. Therefore, it is noticeable that this strategy of AB has a possible future. Furthermore, a similar attitude of ECJ worked very well in its relationship with national constitutional courts. In this regard, the evolution of the attitude of German Constitutional Court from the Solange I96 to Solange IV97 proves this reality as Lavranos demonstrated.98 When German Court held the Solange I case in 1974, ECJ was not (yet) guaranteeing protection for fundamental human rights equivalent to German Constitution. Consequently, German Court decided that as long as99 ECJ did not offer adequate protection for fundamental human rights, it would continue to review the validity of EC regulations with respect to German Constitution. However, German Court reserved its attitude towards European Court and concluded in Solange IV that as long as ECJ ensured the minimum level of protection for fundamental rights, it would not review EC laws. In conclusion, WTO Appellate Body put an end to eventual jurisdictional crises in international trade law by its jurisprudence, which responded to all anxieties about a fragmentatio stricto sensu between WTO DSB and other international tribunals.

The stand point of WTO jurisprudence is no different on the other two levels of fragmentatio. First of all, a situation of fragmentatio lato sensu did not occurred between WTO DSB and another international judicial body. Furthermore, Gabrielle Marceau explained very clearly that these issues could be easily tackled. 100 She provided useful answers for an eventual situation of fragmentatio lato sensu by examining the example of international human rights within the framework of WTO. She pointed out that good

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95 Debra Stegber, ‘1. Strengthening the Wto dispute settlement system: Establishment of a dispute tribunal’ in Ricardo Meléndez-Ortiz, Christophe Bellmann and Miguel Rodriguez Mendoza (eds.), The Future and the WTO: Confronting the Challenges (2012), 112.

96 Entscheidungen des Bundesverfassungsgericht [BVerfGE] [Federal Constitutional Court] May 29, 1974, 37, 271 (F.R.G.) [hereinafter Solange I].

97 Entscheidungen des Bundesverfassungsgericht [BVerfGE] [Federal Constitutional Court] June 7, 2000, 102 147 (F.R.G.). [hereinafter Solange IV].

98 Nikolaos Lavranos, ‘On the Need to Regulate Competing Jurisdictions between International Courts and Tribunals’, EUI Working Papers, Max Weber Programme, 2009/14, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1418518, accessed on October 29, 2013, at 50.

99 Which means Solange in German. 100 Gabrielle Marceau, ‘WTO dispute settlement and human rights’ European Journal

of International Law 13.4 (2002): 753-814.

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interpretations of WTO’s Panels and Appellate Body would ensure to avoid conflicts between international human rights and WTO-covered agreements.101 In this regard, article 3.2 of the DSU offers the necessary legal basis for such good interpretations. It refers to itself as the customary rules of interpretation of public international law for the sake of the interpretation of WTO agreements. 102 Accordingly, article 31(3)(c) of the Vienna Convention on Law of Treaties103 required the AB to take into account relevant human rights laws where applicable in the relationship between parties while interpreting WTO covered agreements.104 Thus, this strategy in accordance with WTO covered agreements allowed avoiding possible fragmentatio.

Secondly, in one of its first cases, AB made it clear that GATT could not be read in clinical isolation from public international law.105 It would be odd to even think about this option. After all, WTO agreements are nothing more than another multilateral treaty in the system of international law. For example, WTO agreements do not have disposition on questions such as burden of proof, representation before Panel, retroactive application of treaties etc.106 Therefore it is not possible to define WTO law as a self-contained regime and consider it outside the system of international law.107

F. Courts of Human Rights

The European Convention of Human Rights (ECHR) 108 was a

leading example for the conclusion of similar conventions among American States and African States. Both the American Convention of Human Rights (ACHR) 109 and the African Charter on Human and Peoples' Rights !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! !!!!!!!!!!!!!!!!!!!!!

101 Ibid, at 779. 102 Joost Pauwelyn, ‘The Role of Public International Law in the WTO: How far

can we go?’ American Journal of International Law (2001): 535-578. 103 Vienna Convention on Law of Treaties, January 27, 1989, 1155 U.N.T.S 331;

Article 31 (3) (c) of the Vienna Convention: “There shall be taken into account, together with the context: any relevant rules of international law applicable in the relations between the parties”.

104 Gabrielle Marceau, ‘WTO dispute settlement and human rights’ supra note 100, at 785.

105 WTO, Appellate Body Report, United States-Standards for Reformulated and Conventional Gasoline, WT/DS2/AB/R, 20 March 1996 at para. 17.

106 Joost Pauwelyn, ‘How to Win a WTO Dispute Based on Non-WTO Law? Questions of Jurisdiction and Merits’ Journal of World Trade, Vol. 37, No. 6, 2003, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=478021 accessed on 28 October 2013.

107 Joost Pauwelyn, ‘Bridging Fragmentation and Unity: International Law as a Universe of Inter-Connected Islands’ Mich. J. Int'l L. 25 (2003): 903.

108 Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, ETS No. 5; 213 U.N.T.S 221.

109 American Convention on Human Rights (also known as the Pact of San José), 22 November 1969, 9 (1969) ILM 99.

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(ACHPR) 110 have similar disposition to ECHR about their respective jurisdiction, which is limited on a regional basis. For this reason, it is not conceivable to have a situation of fragmentatio stricto sensu among the tribunal that these conventions establish. However, it is possible that these human right courts might interpret or understand the same fundamental right differently, consequently creating a situation of fragmentio lato sensu. In this regard, as far as the African Court on Human and People’s Rights (ACtPHR) is concerned, this came into force only in 2004 and it is still too early to talk about the existence of this kind of fragmentation. In the case of the Inter-American Court of Human Rights (IACHR), without going to details, Kerstine Blome has shown “the actual existence of a common judicial enterprise in the area of human rights with mutual recognition and equal value placed” between IACHR and European Court of Human Rights (ECtHR).111 The increasing number of references from ECtHR to IACHR, the use of IACHR’s decision in the proceedings before ECtHR shows this reality as well.112 She concluded the following:

“Self-awareness of the judges involved, willingness to recognize each other as participants in a common judicial enterprise, and consistent jurisprudence in certain areas through cooperation and mutual recognition of each other’s jurisprudence [indicate that] an international judicial human rights system is emerging”.113

Thus, it is possible to argue that a fragmentatio is not present among international judicial bodies in the area of human rights. However, the relationship between ECtHR and ECJ is worthy of analyzing in order to see how these two regional judicial bodies have tackled different issues of conflicting jurisdiction and conflicting interpretation.

In the Internationale Handelsgesellschaft 114 case, the ECJ preceded a judgment on fundamental human rights’ binding effects on the European Economic Community.115 Following this, more and more new cases have been brought before the Court invoking incompatibility of the Community’s legislation with certain human rights. The corner stone of jurisprudence of

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110 African Charter on Human and Peoples' Rights (ACHPR), 1520 UNTS 217; 21 ILM 58 (1982).

111 Kerstin Blome, ‘Wallflower or Essential Constituent? The Inter-American Court of Human Rights’ Role in an Emerging International Judicial Human Rights System’ available at < http://www.stockholm.sgir.eu/uploads/SGIR_2010_Blome.pdf > accessed on 30 October 2013.

112 Ibid., at 16 ss. 113 Ibid., at 31. 114 ECJ, Internationale Handelsgesellschaft (Case 11/70) [1970] ECR 1125. 115 Sionaidh Douglas-Scott, ‘A tale of two courts: Luxembourg, Strasbourg and the

growing European human rights acquis’ Common Market Law Review 43.3 (2006): 629-665, at 629.

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ECtHR was the Bosphorus116 case, which cleared most of the conflict of jurisdiction between Strasbourg and Luxembourg. After having referred to its position on the fact that EC Member States cannot circumvent their human rights obligation by attributing their competence to an international organization,117 the Court concluded with a presumption that there was sufficient fundamental rights protection mechanism in the framework of the Community and if this protection was not “manifestly deficient” in some specific cases, the Court would refuse its jurisdiction.118 This is one of the best examples of how to resolve conflicting jurisdiction issues between international judicial bodies. Admittedly, this is not the end of the discussion and it is more than likely that new problems will surface.119 However, as it has been done in the Bosphorus case, upcoming jurisprudences of Strasbourg and Luxembourg will resolve every jurisdictional question between them step by step. Nevertheless, it does not mean that every international judicial body would follow this logic of “mutual respect” and that there would be no more fragmentatio. But, this case does prove that the best way to deal with different fragmentatio problems between different international judicial bodies is through jurisprudence. That’s why; neither international judges nor international lawyer should expect governments to resolve their pure juridical problems by making new international rules or treaties.

G. Criminal Courts

The history of international criminal tribunals is quite different than

other international judicial bodies. Starting with the Nuremberg trials, until the end of the 20th century, all criminal courts were established after mass atrocity crimes such as the Holocaust, Rwanda, Ex-Yugoslavia, Bosnia, Kosovo. After the ratification of the Rome Statute120 by 60 States, the International Criminal Court (ICC) took its place among international judicial bodies and currently presides over 122 Member States.121 As its jurisdiction is only over individual accused of genocide, war crimes and crimes against humanity,122 there is not a problem of competing jurisdiction

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116 ECJ, Bosphorus Hava Yollari Turizm ve Ticaret AS v. Minister for Transp., Energy & Communications (Case C-84/95) 1996 E.C.R. 1-3953.

117 ECtHR, Matthews v UK 18 February 1999. 118 ECtHR, Bosphorus, supra note 116 para. 156. 119 Tobias Lock, ‘Beyond Bosphorus: The European Court of Human Rights’ Case

Law on the Responsibility of Member States of International Organisations under the European Convention on Human Rights’ Human Rights Law Review10.3 (2010): 529, at 531.

120 Rome Statute of The International Criminal Court, 37 ILM 1002 (1998). 121 Establishment of the court, < http://www.icc-

cpi.int/en_menus/icc/about%20the%20court/icc%20at%20a%20glance/Pages/establishment%20of%20the%20court.aspx> accessed on 30 October 2013.

122 Rome Statute Art. 5 (1), supra note 120.

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between ICC and another international judicial bodies.123 Moreover, ICC did not yet make a definitive judgment until today. However, in one situation, a fragmentatio lato sensu was raised between the International Criminal Tribunal for Ex-Yugoslavia (ICTY) and the ICJ following a conflicting interpretation of the famous issue of “control”.

The issue at stake was to deal “with the question of the legal conditions required for individuals to be considered as acting on behalf of a State, i.e., as de facto State officials”. 124 In this regard, ICJ established a high degree of control citing precedence in the Nicaragua case of 1986.125 The Court decided that:

“The Court has taken the view that United States participation, even if preponderant or decisive, in the financing, organizing, training, supplying and equipping of the contras, the selection of its military or paramilitary targets, and the planning of the whole of its operation, is still insufficient in itself, for the purpose of attributing to the United States the acts committed by the contras in the course of their military or paramilitary operations in Nicaragua. All the forms of United States participation mentioned above, and even the general control by the respondent State over a force with a high degree of dependency on it, would not in themselves mean, that the United States directed or enforced the perpetration of the acts contrary to human rights and humanitarian law alleged by the applicant State”.126

It is important to note that influence of the Cold War was still looming during the Nicaragua case. It would not be plausible to hope that the ICJ would follow “the ‘cat’s paw strategies of de facto participation in conflicts without formal accountability”.127 In other words, the concept of “effective control” was very well established and properly applied as far as the situation in Nicaragua is concerned. However, lots of things regarding the respect of human rights have changed between the Nicaragua case and

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123 However, there is a competing jurisdiction situation with national courts. In this regard, I will add a whole section about national courts and their decisions and attitudes on international cases before them. I will touch to this relationship between ICC and national courts on this section.

124 ICTY, The Prosecutor v. Duko Tadic, Judgement, Case No. IT-94-1-A, A. Ch. 15 July 1999, at para. 99.

125 Ibid. 126 ICJ, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v.

United States of America) Merits, ICJ Reports 1986, para. 115. 127 Martti Koskenniemi and Päivi Leino, ‘Fragmentation of international law?

Postmodern anxieties’ Leiden Journal of International Law 15.03 (2002): 553, at 566.

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the Tadic128 case. As it is clearly and undoubtedly shown by the case law and State practice cited by the Appeals Chamber, the Nicaragua test was not – at least anymore – consonant with the law of State responsibility.129

It is an exaggeration to say that the Tadic case is an ultra vires jurisdiction rather than a conflicting jurisdiction.130 The Appeal Chambers could not make a finding that the standards applied by the ICJ in the Nicaragua Case was tenable because the Nicaragua test was not even compatible with the logic of the law of State Responsibility at that time. In this regard the following citation from the Youmans case of the United States-Mexico General Claims Commission, is quite relevant:

“If international law were not to impute to a State wrongful acts committed by its officials outside their competence or contrary to instructions, “it would follow that no wrongful acts committed by an official could be considered as acts for which his Government could be held liable”.131

It is not plausible and logical according to law of State Responsibility, to expect that the perpetration of the acts contrary to human rights and humanitarian law should be directed or enforced by the United States. If this were the case, there would be nothing left to prove. That’s why the intention of the Appeals Chamber was to proclaim this oddity out loudly, which it has done quite openly. However, if the story were finished at this stage, it would not be plausible to talk about the fragmentation of international law by making reference to these two cases alone. Things changed with ICJ’s genocide case in 2007.132 After this case, it was observed that two tribunals could have distinct views on two points. On the one hand, according to ICJ, it was not indispensable for the Appeal Chamber to rule on State responsibility for the exercise of its jurisdiction.133 ICJ added that it might well be possible that the “overall control” is suitable to decide whether an armed conflict is international or not.134 However, ICJ did not enter into this

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128 ICTY, The Prosecutor v. Duko Tadic, supra note 124. 129 Ibid., at paras.116 ss. 130 Karin Oellers-Frahm, ‘Multiplication of International Courts and Tribunals and

Conflicting Jurisdiction Problems and Possible Solutions’ Max Planck Yearbook of United Nations Law 5 (2001): 67, at 80.

131 Permanent Court of Arbitration, Thomas H. Youmans (U.S.A.) v. United Mexican States Decision of 23 November 1926, Reports of International Arbitral Awards, vol. IV, at 116.

132 ICJ, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, ICJ Reports 2007.

133 Ibid. at para. 403. 134 Ibid. at para. 404.

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question, as it is not indispensable for its judgment at that time.135 It looks quite impossible for ICTY to not take a position on State responsibility in the Tadic case. When there is an armed conflict inside of a State’s territory it must be decided if it constitutes international representation. A court has to rule whether or not an armed group’s activities are attributable to another state based on that State’s rules of responsibility. If the proceeding is not found then it is difficult to blame ICTY. On the other hand, In its decision, without giving satisfactory arguments, ICJ briefly stated that; “the “overall control” test is unsuitable, for it stretches too far, almost to breaking point, the connection which must exist between the conduct of a State’s organs and its international responsibility”.136 Admittedly, two courts found each other’s views on the question of control as unpersuasive. But this kind of difference may also exist in national level between criminal, civil or administrative courts. Therefore, the conclusion would be as Rosalyn Higgins has underlined: “Thus some differences of perception between the ICJ and the ICTY do remain on this control test for purposes of responsibility, but given the different relevant contexts, they hardly constitute a drama”.137

H. Arbitration

ICSID 138 is an international institution created within the

International Convention on the Settlement of Investment Disputes. Approximately 150 States ratified the ICSID Convention.139 ICSID is not a tribunal or a dispute settlement body. It is only a framework in order to provide a mechanism of arbitration between States and investment companies. According to Article 25 (1), “the jurisdiction of the Centre shall extend to any legal dispute arising directly out of an investment, between a Contracting State and a national of another Contracting State, which the parties to the dispute consent in writing to submit to the Centre”. Meaning that, this facility of arbitration in the framework of ICSID is only available for investment disputes. Article 64 of the ICSID Convention deals with the situation where a dispute arises between two contracting States. In that situation, parties can transfer the dispute to ICJ. However, this procedure

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135 Ibid. 136 Ibid. at 406. 137 Rosalyn Higgins, ‘A babel of judicial voices? Ruminations from the bench’

International and Comparative Law Quarterly 55.4 (2006): 791, at 795; 138 Convention on the Settlement of Investment Disputes Between States and

Nationals of Other States (ICSID), (also known as Washington Convention), 17 UST 1270, TIAS 6090, 575 UNTS 159 [Hereinafter, ICSID].

139 Member States, <https://icsid.worldbank.org/ICSID/FrontServlet?requestType=CasesRH&actionVal=ShowHome&pageName=MemberStates_Home> accessed on 01.11.2013.

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has never been used until now.140 Consequently, this article eliminates any possible conflicting jurisdiction between ICJ and ICSID arbitrations.

As soon as fragmentatio lato sensu is at stake, it would be difficult to say that ICSID arbitrations are doing well. In their highly regarded article, Spoorenberg and Vinuales create a great survey about the conflicting decision among ICSID arbitral tribunals. 141 After having clarified seven different reasons for these conflicting decisions, they provide to arbitrators a toolbox in order to handle conflicting decisions arising on investment disputes in a more harmonious way. After this survey, it was concluded, “the mechanisms and techniques currently available to deal with conflicting decisions deserve equal if not more attention than the potential solutions still to be designed and/or implemented”.142 They correctly pointed out that jurisprudence was a metaphorical magic wand that would resolve all these problems.

III. APPROACHES TO THE HARD CHALLENGES OF INTERNATIONAL LAW

A. Constitutionalist approach

International constitutionalism was actually a dream in 1930s and we have been in a déjàvu situation since the 1990s.143 A constitution is the highest law in a society. In the words of Hermann Mosler, “It transforms a society into a community governed by law. It provides for the necessary organization and for the division of competence of organs established under fixed procedural rules”.144 He also adds that even though the international community does not have a general constitution it has many constitutional elements.145 Some developments after the end of the socialist bloc created the need for more constitutional elements and a better international legal order. First of all, these needs were coming from the famous fragmentation of international law, which was causing a strong feeling of anxiety about its unity. International constitutionalism was considered the best antidote and

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140 Gauthier Vannieuwenhuyse, ‘Bringing a Dispute Concerning ICSID Cases and the ICSID Convention Before the International Court of Justice." The Law and Practice of International Courts and Tribunals 8.1 (2009): 115, at 118.

141 Frank Spoorenberg and Jorge E. Vinuales, ‘Conflicting Decisions in International Arbitration’ The Law and Practice of International Courts and Tribunals 8.1 (2009): 91-113.

142 Ibid at 113. 143 Samantha Besson, ‘Whose Constitution (s)? International Law,

Constitutionalism and Democracy’ in Jeffrey Dunoff and Joel Trachtman (eds.), Ruling the World? Constitutionalism, International Law and Global Governance, Cambridge University Press, Cambridge, 2009, 381.

144 Hermann Mosler, The international society as a Legal Community, 140 Recueil des Cours 1 (1974)

145 Ibid.

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knee-jerk solution to these anxieties.146 Secondly, constitutionalism was also about having mechanisms in place to keep politics in check within domestic orders.147 However, globalization has also led to de-constitutionalization on the national level, which has resulted in the transfer of typical national functions to a “higher level” including NGOs. International constitutionalization was therefore the best option in order to “compensate” for what would have been lost at the national level.148 Thirdly, international organizations that were recovering States’ functions were not under the sword of “a universal constitution” which is considered necessary in a perfect democratic and accountable order. 149

These anxieties spread quickly among international scholars and as such they developed the constitutional approach to international law. The subsequent paragraphs will try to analyze the main ingredients of this approach and its regard to the fragmentation issue. The following ingredients are extracted from the recipe “the mechanisms of constitutionalization” prepared by Jeffrey L. Dunoff and Joel L. Trachtman.150

1. Creation of governance institutions and allocation of authority

Allocation authority is basically about splitting the power between

legislative, executive, and judicial bodies. However, a concrete constitution is lacking at the international level and constitutionalist say that they do not intend to create such a document or to institute a centralized government. This is a correct point of view because a constitution is the normative expression of a single sovereign community and because the international community is based on the presentation of distinct States’ sovereignties. This is perhaps the reason why international constitutionalism is about advocating constitutionalist principles in international legal order.151 It is then plausible to examine the current structure of international legal order according to this approach in order to identify how close it is to a constitutional system and

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146 Jeffrey Dunoff and Joel Trachtman, ‘A Functional Approach to Global Constitutionalism’ in Jeffrey Dunoff and Joel Trachtman (eds.), Ruling the World? Constitutionalism, International Law and Global Governance, Cambridge University Press, Cambridge, 2009, at 6; Jan Klabbers, ‘Constitutionalism Lite’ Int'l Org. L. Rev. 1 (2004) at 49.

147 Jan Klabbers, Setting the scene: The Constitutionalization of International Law, Oxford University Press, Oxford, 2009, at 19.

148 Anne Peters, The Constitutionalization of International Law, Oxford University Press, Oxford, 2009, at 347; Anne Peters, ‘Compensatory constitutionalism: the function and potential of fundamental international norms and structures’ Leiden Journal of International Law 19.3 (2006): p.579-610.

149 Klabbers, ‘Constitutionalism Lite’ supra note 146, at 32. 150 Dunoff, Trachtman, ‘A Functional Approach to Global Constitutionalism’ supra

note 146, at 18. 151 Anne Peters, ‘The Merits of Global Constitutionalism’ Indiana Journal of Global

Legal Studies 16.2 (2009): 397, at 397.

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how far it might go to in order to satisfy the proponents of international constitutionalism.

In this respect, the unique document to allocate authority would be the “imaginary constitutional reflection of the international community of States”. In this pre-constitutional order, States would conclude treaties (legislative). Each State would implement these rules under their defined administrative area (executive) or they would create some international administrative bodies to implement laws for them. There would also be various international judicial bodies (judiciary) to resolve any problems arising from the treaties. If this is meant by creating governance institutions to allocate authority, it seems that the international legal order has already reached its aim. However, to ask it to grow, to develop, to be coherent, to be universal in such a divers world, and doing that within the parameters of “diplomatic law way”152 is not a reachable aim. If you chase two rabbits, you will not catch either one. One may clearly observe a reflection of constitutional principle of the separation of power on the schema described above. By taking into account the existent international political will, hoping more than this is far beyond the utopia.

Let’s examine this point through the Charter of United Nations. The Charter was adopted after World War II with the exclusive objective to maintain international peace and security (art.1 para.1) with two main principles, namely, non-interference (art.2 para.1) and equal sovereignty (art.2 para.7). For this reason, governance institutions and allocations of authorities have been done according to this aim and these principles. This is also the reason why, among its principal organs, only the Security Council can issue compulsory resolutions while organs such as General Assembly and Economic and Social Council are only entitled to adopt “recommendations”. Even this brief and basic explanation is enough to comprehend the fact that the UN’s charter does not have constitutionalist principles.

To give another example, one might refer to the G20. In that case, let’s assume the reflection or the idea represented by the G20 as an imaginary constitution. At the end of their meeting, leaders of the G20 publish a declaration, which has no juridical value. One of these declarations included a regulation about the prohibition of tax havens.153 Consequently, G20 Member States took necessary measures at the national level for an appropriate implementation of the declaration. In order to ensure the effectiveness of these measures, compliance from the rest of the international community was also necessary. Economical consequences however, resulted in some non-compliance, all other States, willingly or

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152 Martti Koskenniemi, ‘Constitutionalism as mindset: Reflections on Kantian themes about international law and globalization’ Theoretical Inquiries in Law 8.1 (2007): 9; Koskenniemi, ‘Postmodern anxieties’ supra note 127.

153 Mark Malloch Brown, The unfinished global revolution: The pursuit of a new international politics Penguin Press, 2011, at 209.

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unwillingly, modified their regulations to avoid being blacklisted. It would be an exaggeration to consider the prohibition of tax havens as a “constitutional principle” of the international community. However, all the members of the international community promptly accomplished necessary arrangements to ensure this prohibition as if they were respecting a constitutional principle even though the G20’s declaration had no juridical value. The former did not arise from the goodness of the principle. It rests on the decisiveness of the G20 leaders. This is to say “a constitution’s authority – its status as a fundamental law – ultimately rests not on textual provisions but on ‘the constitution’s acceptance as an authoritative document’.154 This is the line that differentiates a constitution from a paper tiger155 and there is not enough of this kind of principle to initiate a discussion about constitutional bias at the global level. In addition, if one takes into account the critics of countries such as Switzerland, Singapore, Denmark or other Members States of the global governance group or the fact that the G20 made use of some economical coercion in order to ensure their compliance with a principle, then it makes sense156 to reveal that how hard it is to obtain a consensus within such a diverse world. A constitution is appropriate for “a community.” However, the world that we are living in is not “a community”, it is rather “a community of communities.” Therefore, a constitution or constitutional principles for the international community as a whole would not be suitable a solution.

2. Supremacy

The idea of supremacy at the international level is about having

constitutional norms hierarchically superior to other international norms. In this regard, international law provides only two candidates to be superior to ordinary international norms, namely, jus cogens and article 103 of the UN Charter. As far as the former is concerned, according to the Vienna Convention,157 the international community of States as a whole establishes them. A general accepted list of these negative principles158 includes genocide and torture, and some additional basic rules of international humanitarian law etc. However, as Koskenniemi outlined “outlawing the use of force or genocide does not a constitution make”.159 It is only about “the need to take !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! !!!!!!!!!!!!!!!!!!!!!

154 Dunoff, Trachtman, ‘A Functional Approach to Global Constitutionalism’ supra note 146, at 22; Alexander, Larry, and Frederick Schauer, ‘Defending Judicial Supremacy: A Reply’ Const. Comment. 17 (2000): 455, at 460.

155 Anne Peters, ‘The Merits’ supra note 151, at 400. 156 It would not be logical for a State to oppose to receive taxes. That’s why this is a

principle that makes sense. 157 Vienna Convention, supra note 103. 158 Andreas L. Paulus, ‘The international legal system as a constitution’ in Jeffrey

Dunoff and Joel Trachtman (eds.), Ruling the World? Constitutionalism, International Law and Global Governance, Cambridge University Press, Cambridge, 2009, at 88.

159 Ibid at 89.

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seriously what, in fact, was serious, but could not be expressed in a legal rule with a determined content”. 160 From the same perspective, as Paulus emphasized, “these jus cogens limit state sovereignty only insofar as any legal regime worthy of this name would do”.161 Therefore, jus cogens are not able to provide the unity of international law as hoped for by constitutional approach.

When article 103 of the UN Charter is cited in the discussion of supremacy, the subject is to consider whether or not the UN Charter is listed as a constitution of the international community.162 Supremacy means that all law derives its forces from a Constitution and that it is also subject to its control because it arises from a single sovereignty.163 However, as it has been mentioned above, international legal order has been designed to guarantee the equal existence of several sovereignties and therefore currently, “neither is all international law subject to the UN, nor is the Charter the legal sources of international law”.164 Furthermore, much of the “constitutional bylaws”165 of the international community has been developed in parallel to the Charter.166 Nevertheless, “States have constantly and consistently affirmed the unique place of the Charter in the present structure of international law”.167 However, this expression would hardly push to use the supremacy of the Charter and its famous article 103 in order to uphold a Security Council’s decision over human rights treaties168 In this regard, the Kadi169 case of ECJ is an inspiring example and can be considered the “great white” hope for human rights. As a consequence though, it is evident that there is some similarity between the ideal type of constitution and the UN Charter. But to believe that these similarities are strong enough to consider the Charter as a

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160 Koskenniemi, ‘Postmodern anxieties’ supra note 127, at 558. 161 Paulus, ‘The international legal system as a constitution’ supra note 158, at 89. 162 Bardo Fassbender, ‘The United Nations Charter As Constitution of the

International Community’ Colum. J. Transnat'l L. 36 (1998): 529; Bardo Fassbender, ‘Rediscovering a forgotten constitution: Notes on the place of the UN Charter in the international legal order’ in Jeffrey Dunoff and Joel Trachtman (eds.), Ruling the World? Constitutionalism, International Law and Global Governance, Cambridge University Press, Cambridge, 2009, 621.

163 In re Pharm. Mfrs. Ass’n of S.A. 2000 (3) BCLR 241 (CC) at para. 44. 164 Michael Doyle, ‘The UN Charter: A Global Constitution’ in Jeffrey Dunoff and

Joel Trachtman (eds.), Ruling the World? Constitutionalism, International Law and Global Governance, Cambridge University Press, Cambridge, 2009, 114.

165 Fassbender, ‘The United Nations Charter’ supra note 162, at 529; Fassbender, ‘Rediscovering’ supra note 162.

166 Doyle, ‘The UN Charter’ supra note 164 at 114. 167 Fassbender, ‘Rediscovering’ supra note 162, at 143. 168 Koskenniemi, ‘Postmodern anxieties’ supra note 127, at 559. 169 ECJ, Yassin Abdullah Kadi and Al Barakaat International Foundation v Council

of the European Union and Commission of the European Communities (Joined Cases C-402 and C-415/05P) [2008] ECR I-6351.

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constitution seems too good to be true.170 How well it is said; all that glitters is not gold.

3. Stability

Stability is the idea of having constitutional norms being procedurally

more difficult to modify than ordinary international law. From the point of view of international constitutionalism, this requirement is entirely fulfilled. Once signed and ratified, international treaties are highly stable and there is no need to mention that it is almost impossible to modify jus cogens and the UN charter. There is just article 64 of VCLT that reserves though the situation of emergence of a new peremptory norm of general international law. As it has been explained earlier, promoting international constitutionalism through jus cogens and the UN charter cannot be the best option that we have at our disposition, if only for the sake of the unity of international law. Once upon a time, the UN was the symbol of unity and because of the de facto impossibility to reactivate this role; the UN is partially responsible for having fragmented international legal order. Thus, it is important that constitutional norms should not be modified from one day to the next but should instead neither oblige to look the other way or to do what needs to be done. Thus, constitutional norms require “positive stability” that help it and not “negative stability” that harm it.

4. Fundamental rights

Fundamental rights listed in domestic constitutional law and in

international human rights treaties perform “the basic function of stating limits on what governments may do to the people within their jurisdiction”.171 The difference between these two systems of protection rests on the methods of enforcement. While domestic constitutional courts’ power of juridical review is growing, international human rights courts are happy to exist without review power (with the exception of ECtHR).172 Ironically there have been positive developments in domestic constitutional courts and “negative stability” in international human rights courts due to globalization and other phenomenon. States’ constitutions have lost their power in favor of a “higher level” with which the solution of “compensatory constitutionalism” has been proposed.173 Here again we see a strategical error of international constitutionalism. It does not look like a good idea to promote international human rights as stuck in a “negative stability”. It seem

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170 Paulus, ‘The international legal system as a constitution’ supra note 158 at 78. 171 Stephen Gardbaum, ‘Human Rights and International Constitutionalism’ in

Jeffrey Dunoff and Joel Trachtman (eds.), Ruling the World? Constitutionalism, International Law and Global Governance, Cambridge University Press, Cambridge, 2009, ar 234.

172 Ibid at 236. 173 Anne Peters, ‘Compensatory constitutionalism’ supra note 148.

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more plausible to encourage domestic constitutional courts to compensate whatever they lost on their-own. In this regard, the Kadi174 case of ECJ can be a good example for domestic constitutional courts. They can use the Kadi method to ensure the respect of fundamental human rights by international organizations’ regulation. This is the same logic pursued by German Constitutional Courts about its relationship with ECtHR. Until the Solange IV 175 , German judges did not accept the idea that ECJ was there to compensate what had been lost in domestic constitutional review even though ECJ proved long ago its quality about the protection of fundamental human rights. The situation was also similar between ECtHR and ECJ until the Bosphorus176 case where ECtHR explicitly applied the Solange-method.177 These cases are sample situations that show how to handle the problem of competing jurisdiction related to the fragmentation of international law. In the end, it all worked out well. Thus, it is plausible to use this solution as it has proven its effectiveness rather than to create a solution from zero as in the “compensatory constitutionalism” method.

5. Review

Constitutional review is about to “test the legal compatibility of laws

and other act of governance with the entrenched norms and fundamental rights expressed in the constitution”.178 However, in the world’s current state, it is too utopian to hope for this kind of body who would cover all acts of States, international organizations, and other international institutions. As far as ICJ is concerned, it is impossible for them to play this role and has been tremendously reluctant to even review the legality of UN acts. Regardless of this, scholars have proposed to use the preliminary reference method of ECJ.179 ECJ has played an undeniable role on the development of European law through its jurisprudence especially by its doctrine on the concepts of supremacy and direct effect. This would be impossible without the procedural help of the concept of preliminary reference. A proposed solution to the fragmentation problem of international law is to use this similar model and let the ICJ perform its tasks through its advisory opinion procedure. According to the method of preliminary reference, national courts in the EU were obliged to consult the ECJ concerning the !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! !!!!!!!!!!!!!!!!!!!!!

174 ECJ, Yassin Abdullah Kadi and Al Barakaat International Foundation v Council of the European Union and Commission of the European Communities (Joined Cases C-402 and C-415/05P) [2008] ECR I-6351.

175 Solange IV, supra note 97. 176 ECtHR, Bosphorus, supra note 116. 177 Lavranos, ‘The Solange-Method’ supra note 92, at 314. 178 Dunoff, Trachtman, ‘A Functional Approach to Global Constitutionalism’ supra

note 154, at 20. 179 Alicia Farrell Miller, ‘The Preliminary Reference Procedure of the Court of

Justice of the European Communities: A Model for the ICJ’ Hastings Int'l & Comp. L. Rev. 32 (2009): 669; Koskenniemi, ‘Postmodern anxieties’ supra note 127.

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interpretation of EU laws. Similarly, it is proposed that all international judicial bodies that have a jurisdiction on a specific area of international law should be obliged to address the ICJ about the interpretation of general principle of international law in a preliminary manner. As former ICJ President Rosalyn Higgins put it, the preliminary reference cannot be the answer to the famous fragmentation of international law.180

First of all, the situation between ECJ and ICJ is completely different. ECJ played through its case law an important role in establishing a new concept of law, namely, European law. Additionally, this European law created its own juridical instance in order to better its understanding and interpretation. Therefore, from the very beginning of its existence, ECJ has been endowed with the power to rule on European law, which was not possible for national courts. However the ICJ has been appointed to settle legal disputes submitted to it by States and to provide an advisory opinion on legal questions according to the rules of international law. Any other international courts and tribunals established, according to international law, can rule on international law. Therefore, as the relation between general international law and international trade law is quite different than the relation between Italian law and European law, the method of preliminary reference would not work as expected. Moreover, the implementation this method at the global level is impossible. First, it requires modifying each international treaty that establishes an international judicial body. Secondly, why those States that does not recognize the jurisdiction of the ICJ would change their choices all of a sudden?

In sum, it is possible to notice that constitutional approach promotes “de jure solutions” to resolve the fragmentation of international law and to ensure the coherence among the international judicial bodies. However, this “de jure approach” does not provide enough materials to admit the existence of a constitutional order at the global level. Furthermore, constitutionalist propositions to the question of fragmentation, in the case of international judicial bodies, cannot be described as reachable aims. Even though the UN Charter has some constitutional elements, it can barely play the role of a global constitution. To consider ICJ as a global constitutional court is too farfetched. Therefore, it must be concluded that constitutional approach does not provide effective and realizable answers to the question of fragmentation within the international judicial bodies.

B. Legal Pluralist approach

When I started to read and learn about legal pluralism, I felt like a

child in a limitless playground with numerous kinds of toys. Even the researches and researchers in the area of pluralism are quite plural. You have legal anthropologists, sociologists, legal theorists, in addition to international

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180 Rosalyn Higgins, ‘The ICJ, the ECJ, and the Integrity of International Law’ International and Comparative Law Quarterly 52.1 (2003): 1, at 20.

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lawyers and international relation specialists. That’s the reason why we have countless types of pluralism developed and proposed. This made me agree entirely with Guenther Teubner when I read the first phase of one of his articles on pluralism: “Postmodern jurist loves legal pluralism.”181 They really do. Tamanaha identified that legal pluralism is irresistible despite the fact that it has irresolvable conceptual problems.182. The idea of pluralism may have some responses to the different challenges of legal problems but these responses need to be well developed, proved, and its conceptual problems need to be resolved. In order to see where we are in the case of fragmentation of the international legal system and pluralism, it is plausible to see briefly with a historical perspective how the idea of pluralism has become famous and has conquered the hearts of postmodern jurists.

To understand legal pluralism and its implications on the legal thoughts and international legal system, it is first necessary to understand legal centralism. According to one of the its best-known oppositionists, legal centralism is

“ [As] an important part of the ideological heritage of the bourgeois revolutions and liberal hegemony of the last few centuries…law is and should be the law of the State, uniform for all persons, exclusive of all other law, and administered by a single set of State institutions”.183

After this definition it is possible to define more clearly legal pluralism:

“On entend généralement par ‘pluralisme juridique’ l’orientation de pensée qui s’oppose de la façon la plus explicite et la plus intransigeante à l’étatisme juridique”.184

It was this idea to oppose legal centralism in the beginning of 20th century that united authors like Eugen Ehrlich185 and George Gurvitch186 around the concept of legal pluralism. Later, especially in the 1970s and 1980s other important contribution were made to the sociology of law by authors such as Pospisil, Smith, Moore, and later examined and developed by !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! !!!!!!!!!!!!!!!!!!!!!

181 Gunther Teubner, ‘The Two Faces of Janus: Rethinking Legal Pluralism’ Cardozo L. Rev. 13 (1991): 1443 at 1443.

182 Brian Z. Tamanaha, ‘Understanding legal pluralism: past to present, local to global’ Sydney L. Rev. 30 (2008): 375, at 396.

183 John Griffiths, ‘What is legal pluralism’ J. Legal Pluralism & Unofficial L. 24 (1986): 1, pp. 2-3.

184 Renato Treves, ‘La sociologie du droit de Georges Gurvitch’ Cahiers internationaux de sociologie 45 (1968): 51, at 52.

185 Eugen Ehrlich, Fundamental principles of the sociology of law, Vol. 5. Transaction Books, 1936.

186 Georges Gurvitch, Sociology of law. Transaction Books, 2001.

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John Griffiths187. In his turn, Gordon R. Woodman also analyzed the works of John Glissen188, Jacques Vanderlinden189, Barry Hooker190, Sally Engle Merry191 as well as Griffith’s contributions.192 Other important contributions have been made in this line concurrently as the theme has become popular.193

While these discussions were in progress about legal pluralism, in the beginning of 1990s, the popularity of legal pluralism spread among international lawyers. Influenced by this rich, growing and charming literature of legal pluralism, international lawyers proposed pluralist solutions to the increasing legal problems of the 21st century’s international legal system. Only among international lawyers, can one easily notice numerous concepts and types of legal pluralism such as transnational legal pluralism194, global legal pluralism195, constitutional legal pluralism196, internal and external legal pluralism197, and normative pluralism198.

First, as soon as the topic of legal pluralism entered the literature, the next issue was about how to determine what is “law” from a pluralist approach.199 Early scholars of legal pluralism provided a rich discussion on that issue.200 This subject also matters from an international perspective while we consider the old discussion whether international law is “law” and the growing discussions about how to characterize norms, regulations, rules, customs produced by international organizations, private companies,

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187 Griffiths, ‘What is legal pluralism’ supra note 183. 188 John Glissen, Le pluralisme juridique. Editions de l'Université de Bruxelles, 1971. 189 Jacques Vanderlinden, ‘Le pluralisme juridique: essai de synthèse’ Le pluralisme

juridique (1972): 19. 190 Michael Barry Hooker, Legal pluralism: An introduction to colonial and neo-

colonial laws, Oxford: Clarendon Press, 1975. 191 Sally Engle Merry, ‘Legal pluralism.’ Law & Soc'y Rev. 22 (1988): 869. 192 Gordon R Woodman, ‘Ideological Combat and Social Observation-Recent

Debate about Legal Pluralism’ J. Legal Pluralism & Unofficial L. 42 (1998): 21. 193 Among others; Teubner, ‘Rethinking Legal Pluralism’ supra note 181;

Tamanaha,‘Understanding legal pluralism’ supra note 182. 194 Peer Zumbansen, ‘Transnational Legal Pluralism’ Transnational Legal Theory 1.2

(2010): 141. 195 Paul Schiff Berman, Global legal pluralism: a jurisprudence of law beyond

borders, Cambridge University Press, 2012. 196 Neil Walker, ‘The idea of constitutional pluralism’ The Modern Law Review 65.3

(2002): 317. 197 Andre Nollkaemper, ‘Inside or Out: Two Types of International Legal

Pluralism’ in Jan Klabbers, Touko Piiparinen (eds.) Normative Pluralism And International Law: Exploring Global Governance Cambridge University Press, 2013.

198 Jan Klabbers, Touko Piiparinen (eds.) Normative Pluralism And International Law: Exploring Global Governance Cambridge University Press, 2013.

199 Tamanaha,‘Understanding legal pluralism’ supra note 182, pp.391-392. 200 Woodman, ‘Ideological Combat’ supra note 192; Griffiths, ‘What is legal

pluralism’ supra note 183.

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transnational religious groups, global communities, and non-governmental organizations.201 In this regard, it is plausible to avoid as Berman outlines that “fruitless debate about what constitutes law” and to adopt a “descriptive inquiry concerning which social norms are recognized as authoritative sources of obligation and by whom”.202 In the same line, it has been cleverly explained “as a microscope does not explain anything about microbes, legal pluralism does not explain the subject of its concern”.203 This question is also important concerning the worry about the fragmentation of the international legal system. Accordingly, the idea to remove the red line around article 38(3) of the statute of ICJ and to enlarge it with aforementioned rules, regulation, norms is the very reason of fragmentation and we should avoid it at whatever cost in order to keep the system coherent and united. This view however has some contradiction and creates a strange feeling of déjàvu in the sense that it reminds us of the endless discussion between legal centralists and legal pluralists.

Concerning this feeling of déjàvu, when Griffith was opposed to legal centralism, he was insisting on the argument that “legal pluralism is the fact and legal centralism is a myth, an ideal, a claim, an illusion”. 204 Nowadays, concerning the international legal system, Berman argues that:

“Legal fragmentation and the contest among plural sources of norms are not realities that a hierarchically situated actor can choose to permit or reject; pluralism is simply a fact because multiple communities assert norms that have impact. Thus, regardless of what international law proponents say, there will always be resistance to universal norms because there are multiple communities with different normative commitments. As a result, although harmonization regimes are certainly important and influential, they will never occupy the entire field.”.205

Thus, nothing has changed. Secondly, the argument of a legal centralist point of view on the causality between plural centers of international norm development and fragmentation of the international legal system created contradictions. They bemoan about these non-classical ways of international norm production by which they indirectly recognize that

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201 Paul Schiff Berman, ‘Global Legal Pluralism’ S. Cal. L. Rev. 80 (2006): 1155, pp.1177-1178.

202 Ibid at 1178. 203 Ihsan Yilmaz, Muslim Laws, Politics and Society in Modern Nation States:

Dynamic Legal Pluralisms in England, Turkey and Pakistan Burlington, VT: Ashgate, 2005, at 10.

204 Griffiths, ‘What is legal pluralism’ supra note 183, at 4. 205 Paul Berman, ‘The new legal pluralism’ Annual Review of Law and Social Science 5

(2009): 225, at 238.

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pluralism is a fact. However they desperately deny their relevance because their recognition means pluralism as well as the end of the inter-State architecture of the international legal system. In this respect, it is clear that determining the line between the “law” and social life is more difficult to find than the Holy Grail.206 Moreover, as Tamanaha mentioned:

“Law is a 'folk concept', that is, law is what people within social groups have come to see and label as 'law'. It could not be formulated in terms of a single scientific category because over time and in different places people have seen law in different terms”.207

Especially after the fact Griffith change his mind on that issue; this consideration on the concept of law in sociology has become one of the most plausible.208 As a consequence, this descriptive understanding of law is crucial not only at the national level or for the considerations of colonial law, but also for the theory formation of the international legal system.

Another important issue about legal pluralism is the causality between globalization and pluralist trends in the international legal system. Here, another path may create fruitless discussion and should also be avoided. Again, globalization also affects the international legal system in numerous ways. For this reason, it seems more plausible to provide answers to these effects rather than to discuss the cause or the causality. The effect of globalization that is primarily relevant is the multiplication of international judicial bodies. From the perspective of legal pluralism, this is how things should be in a diverse world such as ours. That’s why; this is not the main point of discussion from the standpoint of legal pluralism.

The discussion is tenser concerning other effects of globalization and the views of legal pluralism. In this regard, the effects of globalization that are interesting are, on the one hand, having States losing their powers, controls, and monopoly on many issues which benefit a myriad of official and non-official, public-private, private, sub-national or supra-national normative structures; on the other hand, having these normative structures develop more and more rules, regulations, customs perceived as binding and respecting by increasingly growing the number of people and entities. In this regard, Tamanaha drew attention to a very important point: “One must avoid falling into either of two opposite errors: the first error is to think that State law matters above all else; the second error is to think that other legal or normative systems are parallel to State law”.209 Actually, it seems that there is a kind of supply-demand equilibrium between the effects of legal pluralism and legal centralism. It might just happen that such an increase or decrease

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206 Yilmaz, ‘Dynamic Legal Pluralisms’ supra note 203, at 10. 207 Tamanaha,‘Understanding legal pluralism’ supra note 182, at 396. 208 Ibid pp. 394-396. 209 Tamanaha,‘Understanding legal pluralism’ supra note 182, at 410.

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could occur on both sides following some structural changes in the world, such as the increase of legal centralism with nation-State movement during the 19th century or the increase of legal pluralism through myriad effects during the last decades of globalization.

In conclusion, the pluralist approach includes “de facto” characteristics in regard to the question of fragmentation and multiplication of international judicial bodies. As this is a natural consequence of the evolution of the international legal system, neither international law will fall apart, nor will multiplication of international judicial bodies cause noteworthy dramas. Basically, “de facto solutions” will emerge when the international legal system needs them. However, in this schema, States will not be out of the game, as a strong pluralist would suggest. States are necessary in order to ensure coherence and inter-connectedness among all pieces of the puzzle. Thus, it can be concluded that an updated understanding of weak legal pluralism “de facto” offers solutions to the question of fragmentation within the international judicial bodies.

IV. GLOBAL GOVERNANCE WITHIN THE INTERNATIONAL JUDICIAL

BODIES

A. Preliminary remarks

Experts of international relations frequently refer to the global governance approach. It is one of many famous theories that provide a standing explanation of world affairs in this globalized 21st century. In the case of international judicial bodies, this approach is relevant because it offers a plausible explanation to the attitudes among international lawyers towards the effects of globalization. It seems that even in the specific case of multiplication of international judicial bodies/fragmentation of international law the majority reaction of people involved such as judges, lawyers or scholars was quite similar to the reaction of experts of international relations that study and endorse the global governance approach. It can be assumed that this is caused by the interconnected of globalization. For this reason, it seems sufficient to unite different solutions proposed by international lawyers to tackle the problem of fragmentation of international law under the umbrella of the global governance approach.

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B. Global governance as an umbrella approach for international judicial bodies

This idea of having global governance within the international

judicial bodies is more or less classified under the sociologic/jurisprudential approach of Cesare P.R. Romano.210 He defines it as the following:

“[A call] for judges of international as well as national courts and tribunals to reach across divides and, in the absence of clear-cut norms and principles that can frame their relations, spontaneously build a sort of informal judicial system. …The sociologic/jurisprudential approach is grassroots and bottom-up”.211

One of the main concepts that advocates of this approach refer to is the idea of the comity. Originally, the concept of comity was used in the context of private international law. Even in that context however, it is not clear at all if it is an “absolute obligation” or a “mere courtesy and good will”.212 In the case of international law, things are blurrier and there is no proof for an international custom or justification on the basis of international law.213 Yuval Shany provides the following definition of comity:

“According to this principle, which is found in many countries (mostly from common law systems) courts in one jurisdiction should respect and demonstrate a degree of deference to the law of other jurisdictions, including the decisions of judicial bodies operating in the jurisdictions”.214

In this regard, Professor Lavranos defends the idea that comity is a legal obligation and that all international judicial bodies are bound to apply in order to deliver justice.215 However, he mentions that the concept of comity had originally been used more as a ‘gentlemen’s agreement’ rather than being a strict legal principle.216 It seems more plausible to keep it that way rather than

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210 Cesare PR Romano ‘The Shift from the Consensual to the Compulsory Paradigm in International Adjudication: Elements for a Theory of Consent’ NYUJ Int'l L. & Pol. 39 (2006): 791-872, at 849.

211 Ibid. 212 Joel R. Paul, ‘Comity in International Law’ Harv. Int'l. LJ 32 (1991): 1-79, at 77.

See also, Hilton v. Guyot, 159 U.S. 113 (1895). 213 Yuval Shany, The competing jurisdictions of international courts and tribunals,

Oxford, Oxford University Press, 2003, at 262. 214 Ibid at 260. 215 Lavranos, ‘The Solange-Method’ supra note 92, pp. 325-329. 216 Ibid at 325.

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to oblige judges to apply comity by saying that it is their inherent obligation.217 If it were so, would it mean that those judges that did not apply comity did not do their job correctly? In addition, it would be an impossible mission to create a common understanding of “preserving the uniform and effective application of international law” among countless judges from very diverse backgrounds, exercising in different environments and delivering justice under quite specialized international treaties.218 Therefore, it seems more coherent to ascribe political signification rather than a juridical one to comity. In this respect, the following definition of William Thomas Worster is quite handful: “a bridge meant to expand the role of public policy, public law, and international politics in the judiciary”.219 The policy choice is to highlight the unity and integrity of international law and the international legal system. “If one does not see a coherent whole, but rather, independent, competing legal actors, a system mostly of erratic blocks and elements as well as different partial systems, what kind of comity should be exercised?”220 Moreover, there is also a true application of this concept of comity by an international judicial body. The Arbitral Tribunal noted in the Mox Plant case that:

“In the circumstances, and bearing in mind considerations of mutual respect and comity which should prevail between judicial institutions both of which may be called upon to determine rights and obligations as between two States, the Tribunal considers that it would be inappropriate for it to proceed further with hearing the Parties on the merits of the dispute in the absence of a resolution of the problems referred to. Moreover, a procedure that might result in two conflicting decisions on the same issue would not be helpful to the resolution of the dispute between the Parties”.221

Anne-Marie Slaughter also shared the same approach by entitling it as “judicial comity”; which consists of a transnational cooperation among judges of the global community.222 One of her examples is the relationship between ECJ and national courts. There, she concluded:

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217 Ibid at 328. 218 Ibid at 327. 219 William Worster, ‘Competition and Comity in the Fragmentation of

International Law’ Brooklyn Journal of International Law 34 (2008), 119-149, at 123. 220 Ibid at 124. 221 ITLOS, The Mox Plant case, supra note 65, at 28. 222Anne-Marie Slaughter, ‘Judicial globalization’ Va. J. Int'l L. 40 (1999): 1103-1124,

p.1114.

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“Within this community [of States in Europe], each court is a check on the other, but not a decisive one, asserting their respective claims through dialogue of incremental decisions signaling opposition or cooperation. It is a dialogue of constitutionalism within a national-supranational framework that is potentially adoptable and adaptable by courts around the world”.223

In others examples, she also illustrated that constitutional courts all around the world should reverse decision and modify their own precedent by referring to jurisprudence of ECtHR or IACtHR.224 According to her, these cross-fertilizations among courts and face-to-face meetings of judges are also proof of judicial globalization.225

At the conclusion of his courses at The Hague Academy of International law, Jonathan I. Charney also noted, that multiplication of international courts and tribunals is not jeopardizing the international legal system and this would help to the development of the international law.226 One of his examples is the close relationship between ICJ and ad hoc tribunals on international maritime boundary cases, which helped develop jurisprudence in that field.227

Ruti Teitel and Robert Howse approved of this informal and bottom-up approach by referring to some specific cases of international judicial bodies. They reach the conclusion that international judges basically prefer to cross-judge rather than to use formal mechanisms of legal interpretation.228 Accordingly:

“International legal order will resemble the messy, porous, multiple-value, and constituency politics of democratic pluralism, which is nevertheless underpinned by a more absolutist baseline commitment to the preservation of the human. This may still be fragmentation in a sense, but in mirroring non- or anti-hierarchical democratic pluralism this kind of fragmentation enhances rather than menaces international law's claim to legitimacy”.229

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223 ibid at 1108. 224 Ibid at 1110. 225 Ibid at 1106. 226 Jonathan I. Charney, ‘Introduction’ Is international law threatened by multiple

international tribunals? Collected Courses of the Hague Academy of International Law 271. Martinus Nijhoff Publishers, 1998. Martinus Nijhoff Online

227 Ibid. 228 Ruti Teitel and Robert Howse ‘Cross-judging: tribunalization in a fragmented

but interconnected global order’ NYUJ Int'l L. & Pol. 41 (2008): 959-990, pp. 988-989. 229 Ibid at 990.

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Eval Benvenisti also affirmed the fact that international judicial bodies created a social network to assure a judicial dialogue among them as a response to the fragmentation of international law and in the end it all worked out. 230 Ernst-Ulrich Petersmann also appreciates this optimistic approach as follows:

“To the extent that conflicts of jurisdiction and conflicting judgments cannot be prevented by means of exclusive jurisdictions and hierarchical rules, international courts should follow the example of national civil and commercial courts and European courts and resolve conflicts through judicial cooperation and ‘judicial dialogues’ based on principles of judicial comity and judicial protection of constitutional principles (like due process of law, res judicata, human rights) underlying modern international law. The cooperation among national and international courts with overlapping jurisdictions for the protection of constitutional rights in Europe reflects the constitutional duty of judges to protect ‘constitutional justice’; it should serve as a model for similar cooperation among national and international courts with overlapping jurisdictions in other fields of international law”.231

It is also possible to find out important similarities between this sociological/jurisprudential approach and legal pluralism. As it has been mentioned above in the previous chapter on the legal pluralist approach, the latter was quite popular among sociologists of law. In this regard, this similarity makes sense. William W. Burke-White in his article on international legal pluralism arrived at the following conclusion, which shares almost all of the characteristics of this approach. Accordingly:

“The pluralist conception of the international legal system recognizes-and possibly thrives on-the diversity of the system. A wide range of courts will interpret, apply, and develop the corpus of international law. States will face differing sets of obligations that may even be interpreted differently by various tribunals and may at times conflict. Possibly most significantly, national and international legal processes will interact and influence one another, resulting in new hybrid procedures, rules, and courts. Yet, these

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230 Eyal Benvenisti and George W. Downs, ‘Court Cooperation, Executive Accountability, and Global Governance’ NYUJ Int'l L. & Pol. 41 (2008): 931-958, at 934.

231 Ernst-Ulrich Petersmann, ‘Human rights, international economic law and constitutional justice’ European Journal of International Law 19.4 (2008): 769-798, at 791.

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developments will occur within a common system of international law engaged in a constructive and self-referential dialogue that consciously seeks to maintain the coherence of the overall system”.232

It should also be noted that the view of international judges, the most important actors of international judicial bodies is highly important. Rosalyn Higgins, former president of the International Court of Justice, while acknowledging impressive efforts to tackle the issue of fragmentation among international lawyers believed in the idea of “bottom-up integration and application of the jurisprudence of the various courts and tribunals”, which is more and more present in the international arena and a practice that is being increasingly applied by international judges.233 She also explained that during her presidency she established some informal mechanisms among international courts and tribunals because she believed that “the challenges of multiple courts pronouncing on the same substantive areas of law could be mitigated by the formation of cordial relationships among the courts, the regular exchange of information, and the commitment to reading each other's decisions”.234

In sum, this idea of bottom-up and an informal judicial system is promoted by an important number of specialists of international judicial bodies. They all cover different ways that help to prevent the fragmentation of international law. Some believe in the idea of “comity” either as an international and formal obligation or as an informal and common practice among international judges. Other scholars outlined the importance of the “judicial community” or “dialogue of courts” as a sort of solidarity among judges in order to keep the international legal system more or less intact. This is an interesting point giving the fact that most international judges have worked for more than one international judicial body, and that most of them personally know each other either from their educational or professional life.235 In this respect, others also emphasize the significance of face-to-face meetings among these judges either at formal encounters or at informal occasions. By the same token, others draw attention to follow, read, refer and cross-judge each other’s jurisprudence in order to endorse, empower, and create a global jurisprudence. Hopefully this will allow leveling up from the international judicial networks to a veritable global judicial system.236

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232 William Burke-White, ‘International legal pluralism.’ Mich. J. Int'l L. 25 (2003): 963-980, at 978.

233 Rosalyn Higgins, ‘Plenary Address’ supra note 38, at 392. 234 Rosalyn Higgins, ‘International Courts and Tribunals-The Challenges Ahead:

Conference Opening Speech’ Law & Prac. Int'l Cts. & Tribunals 7 (2008): 261-264, at 62. 235 See generally, Terris, Daniel, Cesare PR Romano, and Leigh Swigart. The

international judge: an introduction to the men and women who decide the world's cases. UPNE, 2007. 236 Cesare PR Romano, ‘Can You Hear Me Now: The Case for Extending the

International Judicial Network’ Chi. J. Int'l L. 10 (2009): 233-273, at 272.

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However, a social-constructivist theory is not enough to talk about the creation of a global jurisprudence. From a legal point of view, the issue of fragmentation is important for law’s predictability and for the question of forum shopping. Let’s explain this with the discussion about the requirement of an “overall control” or an “effective control” to decide on the State responsibility. It is now predictable that if a question rises about this point before IJC, they will decide according to the principle of “overall control”. If it were before ICTY, they would probably stick to their Tadic case and to the principle of “effective control”. But, how other international judicial bodies would react on this point? What would ICC do? Could we say that its decision is predictable? Don’t you think that while the State that its responsibility is questioned would prefer to be judged by ICJ, the other would select another international judicial body in order to take its chances? International judges are aware of this situation as much as we are and it’s their duty to ensure the predictability of law. Therefore, all aforementioned examples about comity, dialogue of courts, cross-judging etc. demonstrate a shared understanding of judicial function among international judges.

What is also remarkable is the fact that when one analyzes aforementioned solutions to the fragmentation of international law with an inclusive method and extracts their fundamental features, they notice that these features are more or less identical to the characteristics of global governance. This is about, for example, opting for informal mechanisms rather than formal ones, giving weight to bottom-up solutions but not to top-down methods, preferring the diversity of key-actors rather than to hierarchize them, counting on an extended and evolving change in time rather than a punctual and one-time-for-all modification, trusting to the common sense and good faith of concerned people rather than putting the “sword of Damocles” up to them.237 Neither this list of similarities nor proposed or endorsed solutions are exhaustive. However, it looks like there is enough to prove that a global governance approach is present among the specialists of international judicial bodies as a response to allegations about the fragmentation of international law through the multiplication of international judicial bodies.

CONCLUSION !

The aim of this work was to propose a cure inspired by the global governance theory of international relations to heal the anxieties about the fragmentation of international law/multiplication of international judicial bodies. The increase in the number of actors, the inter-connectedness of issues, technologies, conflicting interests, and complicated political reasons

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237 See generally Hooghe, Liesbet, and Gary Marks, ‘Unraveling the Central State, But How? Types of Multi-Level Governance’ IHS Political Science Series: 2003, No. 87. (2003): 38.

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have become the very obstacle before States to achieve a compromise on an “international legal system 2.0”. Nevertheless, the creation of WTO and its DSB, the establishment of a permanent international criminal court after numerous ad hoc criminal courts, the increasing human rights protections at regional levels were an effective legal response of States to globalization. With these initiatives, States are trying to ensure to their people their belief on justice by reinforcing international legal systems through the multiplication of international judicial bodies. However, their continuing Westphalian impulses prevented them from making some final efforts in order to create a perfect international legal order. Because the former would mean to lay down arms before international law, and States are politically reluctant. In other words, States have resisted in completing the puzzle of international legal order.

This unfinished puzzle has caused anxieties and fears about the fragmentation of international law. As a reaction, international lawyers have developed solutions in order to ensure the unity of international law. However, most of their solutions are either inspired from a constitutional approach or have arisen from pluralist approaches that could not be more than “paper tigers” or “dead letters”. This is not because these propositions were not good enough. Rather, it was the unfortunate result of the lacking willpower of States.

At the same time, more and more cases were brought before these existing or newly established international judicial bodies. Even though it might be possible to better finalize some of these cases, it would be an exaggeration to say that they harmed the international legal order. On the contrary, most of the time, international judges were able to fill the gaps that were left by States through their jurisprudences. Furthermore, their attitudes in conformity with the understanding of an informal judicial comity and a dialogue of courts, their commitments to read, refer and cross-judge each other’s jurisprudence demonstrates obviously the global approach of international judges. It is clear that this approach resonates perfectly with the global governance approach of international relations. In this regard, it seems that this approach inspired from international relations might be the response that international lawyers and scholars were looking to use in order to appease their fears and anxieties about the fragmentation of international law. !

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Rosalyn Higgins, ‘A babel of judicial voices? Ruminations from the bench’ International and Comparative Law Quarterly 55.4 (2006): 791, p.795.

Rosalyn Higgins, ‘The ICJ, the ECJ, and the Integrity of International Law’ International and Comparative Law Quarterly 52.1 (2003): 1.

Rosalyn Higgins, ‘International Courts and Tribunals-The Challenges Ahead: Conference Opening Speech’ Law & Prac. Int'l Cts. & Tribunals 7 (2008): 261-264.

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Ruti Teitel and Robert Howse ‘Cross-judging: tribunalization in a fragmented but interconnected global order’ NYUJ Int'l L. & Pol. 41 (2008): 959-990.

Samantha Besson, ‘Whose Constitution (s)? International Law, Constitutionalism and Democracy’ in Jeffrey Dunoff and Joel Trachtman (eds.), Ruling the World? Constitutionalism, International Law and Global Governance, Cambridge University Press, Cambridge, 2009, p.381.

Sally Engle Merry, ‘Legal pluralism.’ Law & Soc'y Rev. 22 (1988): 869.

Sionaidh Douglas-Scott, ‘A tale of two courts: Luxembourg, Strasbourg and the growing European human rights acquis’ Common Market Law Review 43.3 (2006): 629.

Stanimir A. Alexandrov, ‘The Compulsory Jurisdiction of the International Court of Justice: How Compulsory Is It?’ Chinese journal of international law 5.1 (2006): 29-38. Stephen Gardbaum, ‘Human Rights and International Constitutionalism’ in Jeffrey Dunoff and Joel Trachtman (eds.), Ruling the World? Constitutionalism, International Law and Global Governance, Cambridge University Press, Cambridge, 2009, p.234.

Terris, Daniel, Cesare PR Romano, and Leigh Swigart, The international judge: an introduction to the men and women who decide the world's cases, UPNE, 2007. Thomas G. Weiss, ‘Governance, good governance and global governance: conceptual and actual challenges’, Third world quarterly 21.5 (2000): 795.

Thomas G. Weiss and Ramesh Thakur. Global governance and the UN: an unfinished journey Indiana University Press, 2010. Thomas J. Biersteker, ‘Global Governance’ in Myriam Dunn Cavelty and Victor Mauer (eds.) Routledge Companion to Security (New York and London: Routledge Publishers 2008).

Tim Graewert, ‘Conflicting Laws and Jurisdictions in the Dispute Settlement Process of Regional Trade Agreement and the WTO’ Contemp. Asia Arb. J. 1 (2008): 287.

Tobias Lock, ‘Beyond Bosphorus: The European Court of Human Rights’ Case Law on the Responsibility of Member States of International Organisations under the European Convention on Human Rights’ Human Rights Law Review10.3 (2010): 529.

Ulrich Brand, ‘Order and regulation: Global Governance as a hegemonic discourse of international politics?’ Review of International Political Economy 12.1 (2005): 155-176. William Burke-White, ‘International legal pluralism.’ Mich. J. Int'l L. 25 (2003): 963-980, p.978.

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William Worster, ‘Competition and Comity in the Fragmentation of International Law’ Brooklyn Journal of International Law 34 (2008), 119-149.

Yuval Shany, The competing jurisdictions of international courts and tribunals Oxford, Oxford University Press, 2003.

REPORTS

Commission on Global Governance, ‘Our global neighborhood: The report of the Commission on global governance’ (1995).

International Law Commission, Fragmentation of International Law. Problems caused by the Diversification and Expansion of International Law, (Report of the Study Group of the International Law Commission, finalised by Martti Koskenniemi) UN Doc A/CN4/L682 (13 April 2006).

TABLE OF CASES !

European Court of Human Rights

ECtHR, Bosphorus v. Ireland 30 June 2005.

ECtHR, Matthews v UK 18 February 1999.

European Court of Justice

ECJ, Bosphorus Hava Yollari Turizm ve Ticaret AS v. Minister for Transp., Energy & Communications (Case C-84/95) 1996 E.C.R. 1-3953.

ECJ, Commission of the European Communities v Ireland (MOX plant case) (C- 459/03) [2006] E. C. R. I-4635.

ECJ, Internationale Handelsgesellschaft (Case 11/70) [1970] ECR 1125.

ECJ, Yassin Abdullah Kadi and Al Barakaat International Foundation v Council of the European Union and Commission of the European Communities (Joined Cases C-402 and C-415/05P) [2008] ECR I-6351.

International Court of Justice

ICJ, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, ICJ Reports 2007.

ICJ, Fisheries Jurisdiction Case (Spain v. Canada), Jurisdiction, Judgment, ICJ Reports 1998.

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ICJ, Case of Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. the United States), Jurisdiction and Admissibility, Judgment, ICJ Reports 1984.

ICJ, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America) Merits, ICJ Reports 1986.

ICJ, North Sea Continental Shelf Cases (Federal Republic of Germany v. Denmark; Federal Republic of Germany v. the Netherlands), ICJ Reports 1969.

ICJ, Jurisdictional Immunities of the State (Germany v. Italy: Greece Intervening), Judgment, ICJ Reports 2012.

International Criminal Tribunal For the Former Yogoslavia

ICTY, The Prosecutor v. Duko Tadic, Judgement, Case No. IT-94-1-A, A. Ch. 15 July 1999.

International Tribunal for the Law of the Sea

International Tribunal for the Law of the Sea (ITLOS), The Mox Plant case (Ireland v. United Kingdom), Suspension of proceedings on jurisdiction and merits, and request for further provisional measures, 42 (2003) ILM 1187.

ITLOS, ‘Case Concerning the Conservation and Sustainable Exploitation of Swordfish Stocks in the South-Eastern Pacific Ocean’, Order 2000/3, 20 December 2000, Constitution of Chamber, available at http://www.un.org/Depts/los/ITLOS/SWORDFISH_STOCKS.htm.

MERCOSUR Ad Hoc Arbitral Tribunal

MERCOSUR Tribunal, Uruguay v. Brazil (Remoulded Tyres) 9 January 2002, available at: http://www.mercosur.int/msweb/portal%20intermediario/pt/controversias/VI%20LAUDO.pdf.

Permanent Court of Arbitration

Permanent Court of Arbitration, Thomas H. Youmans (U.S.A.) v. United Mexican States Decision of 23 November 1926, Reports of International Arbitral Awards, vol. IV.

World Trade Organization

WTO, ‘Chile – Measures Affecting the Transit and Importation of Swordfish’ WT/DS193/2, Request for the Establishment of a Panel by the European Communities, 6 November 2000.

WTO, Appellate Body Report, Mexico – Tax measures on soft drinks and other beverages, WT/DS308/AB/R, 6 March 2006.

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WTO, Appellate Body Report, Brazil – Measures Affecting Imports of Retreaded Tyres WT/DS322/AB/R, 3 December 2007.

WTO, Panel Report, Brazil – Measures Affecting Imports of Retreaded Tyres, WT/DS322/R, 12 June 2007.

WTO, Appellate Body Report, Brazil – Measures Affecting Imports of Retreaded Tyres, WT/DS322/AB/R, 3 December 2007.

WTO, Appellate Body Report, United States-Standards for Reformulated and Conventional Gasoline, WT/DS2/AB/R, 20 March 1996.

Germany

Solange I, Entscheidungen des Bundesverfassungsgericht [BVerfGE] [Federal Constitutional Court] May 29, 1974, 37, 271 (F.R.G.)

Solange IV, Entscheidungen des Bundesverfassungsgericht [BVerfGE] [Federal Constitutional Court] June 7, 2000, 102 147 (F.R.G.)

Republic of South Africa

In re Pharm. Mfrs. Ass’n of S.A. 2000 (3) BCLR 241 (CC).

United States

Hilton v. Guyot, 159 U.S. 113 (1895).

TABLE OF LEGAL INSTRUMENTS AND DOCUMENTS

• African Charter on Human and Peoples' Rights (ACHPR), 1520 UNTS 217; 21 ILM 58 (1982). • American Convention on Human Rights (also known as the Pact of San José), 22 November 1969, 9 (1969) ILM 99. • Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, ETS No. 5; 213 U.N.T.S 221. • Convention on the Settlement of Investment Disputes Between States and Nationals of Other States (ICSID), (also known as Washington Convention), 17 UST 1270, TIAS 6090, 575 UNTS 159. • Hague Convention IV (1907), Respecting the Laws and Customs of War on Land and its Annex: Regulation concerning the Laws and Customs of War on Land, 187 CTS 227; 1 Bevans 631. • Mercado Comùn de Sur (MERCOSUR), Treaty establishing a common market between the Argentine Republic, the Federative Republic of Brazil, the Republic of Paraguay and the Eastern Republic of Uruguay (also known as the Treaty of Asuncion), 30 (1991) ILM 1044.

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• North American Free Trade Agreement (NAFTA), 32 ILM 289, 605 (1993). • Rome Statute of The International Criminal Court, 37 ILM 1002 (1998). • Statute of the International Court of Justice, United Nations Charter, 26 June 1945, 1 UNTS XVI, Annex I. • Treaty on the Functioning of the European Union (TFEU) OJ C 83/47, 30.3.2010. • United Nations Convention on the Law of the Sea (UNCLOS), 21 (1982) ILM 1261. • Vienna Convention on the Law of Treaties (VCLT), 23 May 1969, 8 (1969) ILM 679. • WTO, Understanding on Rules and Procedures Governing the Settlements of Disputes, Marrakesh Agreement Establishing the World Trade Organization, Annex 2, 15 April 1994, 33 (1994) ILM 1226.

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AUTHORS Ana Cristina Ribeiro Costa is a Doctoral student and invited teacher at Universidade Católica Portuguesa, Escola de Direito do Porto, teaching the courses of Health and Safety at the Workplace Law and the Work Related Accidents Seminar, both in the Masters in Labor Law. She collaborates with Católica Research Centre for the Future of Law in its protocol with the Group CaixaSeguros. She is a lawyer at Gama Lobo Xavier, Luís Teixeira e Melo e Associados, Sociedade de Advogados, R.L. She is a Member of the Editorial Board of the Review Questões Laborais. She is also Vice-president of the Associação de Jovens Juslaboralistas. Denise Wiedemann is research and teaching assistant at the Institute for Foreign and European Private and Procedural Law in Leipzig. Besides, she has a teaching assignment at the University of Applied Sciences in Meißen, where she mainly teaches civil law, European law and private international law. Currently, she is a visiting researcher at IDC (institut de droit comparé) and CRDI (centre de recherche de droit international privé et du commerce international) of l’Université Panthéon-Assas (Paris II). She earned the First State Exam (2013) and the State Exam for the administration of justice (2008) in Germany (each with rank number one in Saxony) as well as a master degree (LL.M., 2011) from Universidade Católica Portuguesa, Global School of Law. In 2013, she attended the summer program in private international law of The Hague Academy of International Law including a colloquium for doctoral students. For her Ph.D. Project in the area of European Law of Civil Procedure she received a fellowship from the Studienstiftung des Deutschen Volkes. Diana Oswald holds a Ph.D., a Master of Laws (summa cum laude, 2011, bilingual German/French), and an M.A. in Management (cum laude, 2014, bilingual English/German), all from the University of Fribourg (Switzerland). She is currently working as a graduate research and teaching assistant at the University of Fribourg. In the past, she has worked at a major law firm in Zurich and interned at a smaller law firm and an appellate court. Halil Göksan, Turkish national, has completed his Bachelor Degree in Law at the University of Lausanne in 2010. Then, he obtained his Master Degree in International and European Law at the University of Geneva, in 2012. He is now a Ph.D. candidate at the University of Geneva and works on a thesis about “Challenges of International law”. He works also as Teaching Assistant for Geneva Summer School on Understanding Global Governance

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and He is the Main Representative at UN in Geneva of Journalists and Writers Foundation, an NGO holding a General Consultative Status with ECOSOC. Kelly Chen is a doctoral candidate at Stockholm Centre for Commercial Law, the Faculty of Law at Stockholm University, Sweden. Her dissertation addresses the regulation of the global financial markets, especially the case of multinational financial institutions in the EU and China. In her research, she is particularly interested in interdisciplinary approaches towards political and legal issues in the integrated financial markets. She studied law at Stockholm University and is fluent in Swedish, English, Chinese and French. Furthermore, she is affiliated with the Stockholm University Graduate School of International Studies, a research school dedicated to global and interdisciplinary studies. Petr Zarivnij is a Ph.D. student at the Department of Criminal Law, Faculty of Law, Masaryk University Brno, Czech Republic. He has work experience that he gained during his internships at Eurojust (Den Haag), the Supreme Court, the Supreme Administrative Court, the Office of the Ombudsman and the Public Prosecutor’s Office. He is currently working on his dissertation entitled Investigation of frauds with financial funds of the EU. In connection with this, he is dealing with the issue of European criminal law and its impact on the legal systems of the Member States. Yueh-Ping (Alex) Yang, from Taiwan, is an S.J.D. candidate at Harvard Law School, pursuing the study with Professor Reinier Kraakman. He had his LL.B (2005) and LL.M degrees (2010) at National Taiwan University and the other LL.M degree (2012) at Harvard Law School. His research interests include corporate governance, financial regulation and international economic laws, and his S.J.D. dissertation focuses on the corporate governance of Chinese state-owned banks. His publications, among others, include “Corporate Governance and Corporate Social Responsibility: The Protection of Shareholders, Creditors, Employees, and Investors in Mergers and Acquisitions” (Angle Publisher, 2011) (in Chinese). Zlatina Georgieva is a second-year Ph.D. researcher at the Law School of Tilburg University, the Netherlands. She is affiliated more specifically with the Tilburg Centre for Law and Economics (TILEC). Her research interests lie in the study of soft law and its development/shaping through courts of law in the domain of EU economic regulation and EU Competition law in particular.

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