Wednesday, November 01, 2006

The mythology of international judicial fragmentation

An entertaining post, well worth a read, over at Opinion Juris, where Cesare Romano sketches the parallels between the rise and fall of the International Court of Justice and the theme of usurping the father-figure in ancient Greek mythology. The plethora of fragmented judicial bodies, from the WTO dispute settlement mechanism through international criminal tribunals to regional entities such as the ECJ and ECtHR have rebelled against the ICJ's attempt to subordinate them and retain its own dominant position in the international judicial heirarchy, eventually "emasculating" the body that begat them.

One thing is missing from his analogy, however; in the Greek mythology he refers to, the sucessful usurper proceeded to construct a new heirarchy, with himself installed at its summit. Some such structure seems inherent in the notion of order, and legal order in particular; we must ask, then, if we are to condemn the ICJ as "already passé", who is to become the new dominant actor on the global level? The obvious answer is not, for many, a particularly palatable one, and yet there is only one institution of global reach with a strong (indeed, compulsory) judicial mechanism: the WTO.

With this in mind, perhaps we can retain the hope that reports of the ICJ's demise have been greatly exaggerated. Undoubtedly, it is an institution in dire need of serious reform, but the all-too-ready willingness to confine it to the textbooks of international legal history itself creates the risk, which Romano himself fears, that the dominant role of general interpreter of international law, the apex of the fragmented international judicial system, will be assumed not by the best suited, but simply by the best placed. In the current global climate, and for the foreseeable future, it is only the perceived necessities of economic logic that have the strength to get states to commit to compulsory dispute settlement measures.

The fear, of course - and one that Romano shares - is that in getting rid of a tribunal with general responsibility for, and competence in, all aspects of international law, we will allow a single conceptual framework to dominate and interpret all others. The ecomomic mindset is already extremely influential in global affairs; to allow it to come to dominate in law itself would be potentially disastrous for the diversity of viewpoint and in-depth specialisation that has driven the fragmentation process that we have witnessed over the past few decades. This specialisation has brought a new level of maturity and richness to the international legal scene; it is something that we should be looking to preserve to the greatest degree possible whilst retaining a sense of order.

There are certainly no shortage of examples, from ancient or far more recent history, of cases in which people have been too quick to welcome the demise of an old ruler without full awareness of who will rise to take his place, and of the new heirarchical structure that will be initiated, and have come to regret the speed with which the old was jettisoned to make way for the new. It may be, of course, that the ICJ is simply too far gone to rescue; if that is the case, however, this is a time for the utmost vigilance as to its successor, not for either the triumphalism or complacency with which news of its demise is often greeted.

Romano's short piece, however, is neither complacent nor triumphant, and provides us with a vivid new way of imagining both the history and the future or the international judicial system. Like I said, well worth a read.

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