International Law from the Bottom Up: Fragmentation and Transformation

Since the Treaty of Westphalia in 1648, international law has basically been understood as law governing the relations among sovereign nation states. The system was radically transformed after World War II. Stunned by the Holocaust and the other horrors of war, world leaders drafted the UN Charter and the Universal Declaration of Human Rights. Human rights law – the recognition of individual human beings as subjects of international law – was the first major sea change in international law from the bottom up. The second, which also followed World War II, was decolonization. The colonial territories, like individuals, had never before been considered legal subjects. Rather, they had been viewed as the property of the ‘civilized’ Western states. The more recent members of the international system of states, in general, are less industrialized and poorer than the Western states. They have been known by many different terms, including the "Third World,” the “Group of 77,” the “Global South,” and the “Least Developed Countries” (“LDCs”), which is the term used here. Both bottom-up projects share an increasingly fragmented world. During roughly the same period that the LDCs and human rights have been emerging, international law has been dramatically expanding and diversifying, as set out in the 2006 Report of the International Law Commission on the Fragmentation of International Law (ILC Report). Part I of this Article examines the ongoing bottom-up transformation of international law as a normative process and the simultaneous fragmentation of international law as a structural process. The thesis here is that the structural transformation of international law – fragmentation – both supports and undermines the normative bottom-up transformation of international law. Fragmentation supports human rights even as it undermines LDCs. Part II of this Article examines the effects of the fragmentation of international law on women’s human rights. While this relationship is complex, it can be characterized, in general, as positive insofar as conflicts between wealthy, powerful top-down entities, such as industrialized states, and ‘bottom-up’ human rights constituencies are concerned. That is, in such contexts these two developments reflect and reinforce each other. Where top-down entities are in tension with human rights, fragmentation is likely to work to the advantage of the latter. Indeed, human rights advocates contribute to fragmentation, and in some areas are largely responsible for it, for precisely this reason. Part III describes the impact of fragmentation on LDCs. Where top-down entities are in tension with LDCs, in contrast, fragmentation generally benefits those on top. The proliferation of “legal institutions and spheres of legal practice” described in the ILC Report enables wealthy states and even non-state actors, such as multinationals, to outlawyer the LDCs, further marginalizing them. Indeed, top-down entities contribute to fragmentation, and in some areas are largely responsible for it, for precisely this reason. Part IV draws on the frameworks developed in the first two parts to analyze the effects when the two coincide; that is, the effects of fragmentation on women’s human rights in LDCs. It explains, first, why the fragmentation of law that has been used to promote women’s rights elsewhere is less effective in LDCs. It then explains why women in LDCs are more likely than men to feel the brunt of the consequences when fragmentation disadvantages LDCs. Neither the transformation nor the fragmentation of international law is a natural or inevitable process. Rather, both result from a series of strategic legal initiatives by those who seek to further a broad range of often competing objectives, from women’s human rights to corporate profits to redistribution of resources. International law is particularly conducive to such initiatives because there are so few inter-governmental institutions to constrain them. But these initiatives rely on law. They are impossible without infrastructure, including courts and honest judges. They are impossible unless people are aware of their own human rights and have access to skilled lawyers, capable of maneuvering through increasingly complex legal regimes. They are impossible, too often, without the resources to support sustained, high-stakes litigation. These are all in short supply in LDCs, with grim consequences for the world’s poorest, especially those who are female.