WPS 2018-03: Beyond Fragmentation: On International Law’s Integrationist Forces

Tamar Megiddo

This article challenges the widespread scholarly assumption that international law is inevitably headed towards increasing fragmentation, resulting from the proliferation of international legal regimes, and particularly international tribunals. Addressing the concerns arising from states’ receiving inconsistent guidance from different international legal regimes, I argue that such situations may in fact serve as catalysts for integration efforts on the part of states. Rather than remaining paralyzed in the face of normative conflict, states take a proactive, creative approach and try to reconcile their various international legal obligations, without forsaking their domestic agendas. Furthermore, states then strive to convince their peers as well as international monitoring bodies of their proposed solution. In doing so, they promote harmonization of international legal norms and integration among international law’s different legal regimes. They thereby mitigate international law’s fragmentation and its adverse effects.

Adopting a comprehensive plan to fight tropical diseases, Brazil came across an unexpected hurdle: its international trade obligations. Its ban on the importation of used and recycled tires, which serve as mosquito breeding sites, was challenged by its trading partners in both the Southern Common Market and the World Trade Organization. Unfortunately for Brazil, the two international tribunals rendered conflicting rulings and Brazil was thus forced to choose between disregarding one of the rulings, or abandoning its plan in order to comply with both. Brazil’s story has been viewed as the epitome of the dangers of international law’s fragmentation. Challenging this accepted narrative, this article uses Brazil’s difficult situation to illustrate that its circumstances served in fact as a catalyst of efforts of international legal integration. Rather than becoming paralyzed or turning its back on international law, Brazil remained committed to its international legal obligations and proactively and creatively worked to reconcile them without giving up its domestic agenda.

WPS 2018-03 (pdf)