The sphere of international law is a community of states and international organizations which enforce laws decided upon by common consent so that all can exist mutually in peace. The laws usually are formed based on social conduct guidelines and principles that one may feel bound to follow to preserve their relations with others. The entire purpose is to secure the rights of individuals and non-state entities as well as the member nations. The United Nations was established keeping in mind the end goal of securing the rights of individuals and non-state entities as well as member nations all while maintaining decorum in the international sphere. As the world progressed, further challenges found their way to the surface of the world, and the practice to give birth to equivalent solutions demanded wider approaches by institutions well versed in that specific field. That is what fragmentation is, the emergence of the numerous organizations that exist on the very foundation of specialization in a certain field despite having different constitutions (every organization may operate on a different set of guidelines), reach (the level of power they have concerning the impact they can make), scope (all the organizations can work on a different subject matter, e.g. one may concentrate on human right violations in a specific country while another may raise their voice or take action against any incident on a global level) and character (some organizations can be privately funded while others may rely on public funding).
GROWING DOMINANCE OF FRAGMENTATION
The world order today is rapidly modifying itself with former hegemonies slowly disintegrating with a multi-stakeholder system taking over. The scenario on the global level is not as simple as it was in 1945 when there were only two superpowers, the United States of America and the Soviet Union, and the world was divided amongst them as the Eastern bloc and the Western democracies. Today, however, each country is its leader with the concept of sovereignty set in stone and the idea of self-growth governing their actions. There exists a doctrine of equality of states which can be found in natural law. This doctrine states that all states have to have equality in the legal sphere even if their size varies hugely in the political arena. “Today’s fragmented world is tomorrow’s uniformity”, a system witnesses fragmentation when newer forces and surroundings come into play. A particular process can be evil for some while progressive for others depending on the stature of those players. For instance, former dominant countries wouldn’t be a fan of the changing landscape as the authority they had held in the past would be getting eroded bit by bit, but for the countries which did not previously hold a lot of say in the global affairs would be able to make space for themselves all while coming out of the shadow of bygone super-powers.
The RCEP (Regional Comprehensive Economic Partnership) is made of 10 ASEAN (Association of Southeast Asian Nations) members and six other countries (India, Australia, China, Korea, Japan, and New Zealand), four of which also belong to Asia. It is the largest regional trading agreement with its members making up almost half of the world’s population, over a quarter of the world’s exports, around 30 per cent of the global GDP, and a third of the global trade. The aforementioned statistics are testament to the fact that today, there lies more than one group of power other than the age-old European countries doing their part in dominating the world’s most important aspects, one of them being finance. The overall budget of the UN and more specifically the peacekeeping missions it undertakes are funded by the member nations, the biggest contributor being the United States, the biggest example of the aforementioned ‘dominant country’. The past two years of 2020 and 2021 saw the headlines grabbed by one specific UN body- World Health Organization (WHO). Due to the health crisis prevalent throughout the world, the titular principal body on health had an eventful time. The point of concern for this subject matter although isn’t the pandemic but the body’s contributors, because of whom there are no hindrances in the functioning of the organization, the bank behind them for years of 2018/2019 being the United States, followed by the United Kingdom of Great Britain and Northern Ireland, Bill & Melinda Gates Foundation and the GAVI Alliance (in descending order), among others. This corroborates the theory of fragmentation being widespread in today’s time in international law.
BOON OR BANE?
The above-mentioned scenario could be seen as a challenge of fragmentation or a potential prospect. The idea of it being a challenge could play out in a situation where if the private foundation collapses or suffers losses then two of the body’s biggest contributors would bite the dust and the two entities upon whom the organization heavily relies for funds won’t be available anymore which would be detrimental to it. A scenario similar to it was expected to play out when the US under the presidency of Donald Trump in 2020 announced an intention of backing out as a member of WHO, the same was however rescinded by current President Joe Biden thus saving a big blow to the financial condition of the organization. Contrary to it, the fact that two private foundations are on the same list as dominant countries can also be hailed as a victory because this means that there is a chance of institutions being able to establish themselves as successful as a hegemonic country.
A system of governance can either be unilateral or pluralistic. When the accepted arrangement is unilateral then it can be said that governing laws or guidelines are going to emerge from one specific position. But what happens when the structure has too many players giving their input? With more and more institutions coming up every day for a different subject matter, the increasing pluralism may result in a conflict regarding principles and methods, thus fundamentally diverting from the primary issue at hand. A more diverse and inclusive system should always be welcomed as that is when an appropriate amount of representation can be brought to the table, which is all the more reason why there should be a way found for the continuity of the coexistence of all so that the multiplicity of institutions can be integrated harmoniously without having to deal with overlapping jurisdictions.
The basis of fragmentation also relies on the aspect of decentralization. There shouldn’t be one sovereign or legislator commanding the entire world and thus infringing any state’s right to protect its sovereignty. According to Plato, society is bounded by wanting to be happy. On an individual level, each country takes steps to achieve the same. This system works because everyone can take actions for the furtherance of the same goal but according to their regimes without having to consult or act on the advice of someone foreign. From the earliest times, rules of conduct to regulate relations between independent communities in their usual form were not felt necessary and emerged from usages observed by these communities in their usual relationship. International law depends on many sources, one of them being customary principles. Fragmentation as a concept can be seen to have immense potential if the emerging institutions follow norms and customary principles to generate acceptance on a wider scale.
When the discussion is on international law then there are immensely important and high stakes involved and one cannot conclude lightly. The main aspect of fragmentation should be, in a way, to dissolve and eradicate hierarchy. Hierarchy cannot be beneficial in any manner, political, legal, or social. Multiple players do not necessarily have to come together with a negative connotation, the more the actors, the more the minds, the wider the horizon, and more the ways a certain statute can be seen be interpreted. If all the players involved in the sphere mutually recognize each other and are tolerant of more than one opinion then that is when concepts such as justice, democracy, liberty, and equality can be rightly said to be present. Justice is an idea, an attribute of the mind, and acts as a synthesizer between conflicting opinions. Through a system of justice and equality, common standards can be established.
Author(s) Name: Ankita Jha (Xavier University, Kolkata)