POMFR: Beyond the Established Legal Orders

Have you wondered recently whatever happened to all that “fragmentation of international law” we used to worry about? Well, a 2011 volume edited by Malcolm Evans and Panos Koutrakos and published by Hart Publishing, that’s what happened. While I would like to introduce you briefly to the whole volume, there is one contribution I would particularly like to draw your attention to.

To put you in context, this is in my view a good book for those among us who were fascinated by the „fragmentation of international law“ debate starting (or at least becoming one of THE topics) in the 2000s; who have perhaps read Koskenniemi’s report for the International Law Commission or other literature on the topic (legal pluralism, Pauwelyn’s Conflict of Norms, you name it); who find themselves now stuck in one of the boxes and/or compartments of international or EU law; and who probably would love an update and overview over where we stand today. Well, of course the book has a strong EU law focus; otherwise, I would probably have to post my thoughts on it on a different blog. But still, it promises updates in a number of areas where EU law and international law connect in one way or another.

Depending on your field of expertise and interests, you may find some chapters more appealing than others. One of the strengths of this edited volume is certainly the breadth of contributions, which cover among others the Common Commercial Policy (Joris Larik), international and European financial market regulation (Eilis Ferran), human rights law (Bruno de Witte), international and European criminal law (Valsamis Mitsilegas), terrorism and human rights law (Takis Tridimas, Jan Klabbers) and non-proliferation (Panos Koutrakos). Wer zählt die Völker, nennt die Namen…

Still, there is one chapter that I would particularly recommend, at least if you have some basic affinity for legal theory: George Pavlakos and Joost Pauwelyn’s „Principled Monism and the Normative Conception of Coercion Under International Law“ (pp. 317-341).

The central idea of Principled Monism is that there is a scheme of substantive principles of justice, and that it is this scheme rather than necessarily a formal hierarchy of sources which holds the multitude of institutional sources of national and international law together (p. 325). Based on this premise, the problem of fragmentation of international law and dispute settlement fora becomes less of a mechanical problem of determining precedence of one particular institutional actor or legal regime. On the contrary, discussing cases like e.g. the Kadi decision by the General Court Pavlakos and Pauwelyn suggest (p. 322-323)

 „[N]amely, that questions about boundaries and institutional relations between legal orders are not defining of the content of the legal obligations, which the courts are called to enforce as a matter of duty. Rather, such questions are subject themselves to the substantive normative principles which determine the existence and the content of the relevant legal obligations.“

 Issues of formal norm hierarchy could, under such an approach, take a back seat (p. 323):

 „[T]he final instance for determining the limits or the formal positioning of any legal order is not any institutional facts but substantive arguments that draw on principles of individual (and collective) morality.“

Sounds novel/untenable/compelling to you? Go ahead and enjoy the read; it is in my view a sophisticated, yet accessible exercise of legal theory which features some well-known case law from a perspective you perhaps have not looked at it yet, a bit of Kant, the connection between law, morals and coercion in international law and eventually an interesting novel perspective on the sources of international law. What’s the benefit? Well, ideally „a way of understanding the various legal orders of international and national law (including EU law) as forming a unique normative order“. That should be worth the intellectual effort, right?