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60 Stan. L. Rev. 595 (2007-2008)
The Empire's New Clothes: Political Economy and the Fragmentation of International Law

handle is hein.journals/stflr60 and id is 603 raw text is: THE EMPIRE'S NEW CLOTHES: POLITICAL ECONOMY AND THE FRAGMENTATION OF INTERNATIONAL LAW Eyal Benvenisti* and George W. Downs** The decades following the end of the Cold War have witnessed the growing proliferation of international regulatory institutions with overlapping jurisdictions and ambiguous boundaries. Practicing jurists have expressed concern about the effects of this increased fragmentation of international law, but for the most part international legal theorists have tended to dismiss such concerns as unwarranted. Indeed, many regard the resulting competition for influence among institutions as a generative, market-like pluralism that has produced more progress toward integration and democratization than could ever have been achieved through more formal means. In this Article we argue that the problem offragmentation is more serious than is commonly assumed because it operates to sabotage the evolution of a more democratic and egalitarian international regulatory system and to undermine the reputation of international law for integrity. It is also more resistant to reform. Powerful states labor to maintain and even actively promote fragmentation because it enables them to preserve their dominance in an era in which hierarchy is increasingly viewed as illegitimate, and to opportunistically break the rules without seriously jeopardizing the system they have created. Fragmentation accomplishes this in three ways. First, by creating institutions along narrow, functionalist lines and restricting the scope of multilateral agreements, it limits the opportunities for weaker actors to build the cross-issue coalitions that could potentially increase their bargaining power and influence. Second, the ambiguous boundaries and overlapping authority created by fragmentation dramatically increase the transaction costs that international legal bodies must incur in trying to reintegrate or rationalize the resulting legal * Anny and Paul Yanowicz Professor of Human Rights, Tel Aviv University, Faculty of Law. ** Dean of Social Science and Professor of Politics, New York University. The authors wish to thank Ryan Goodman, Benedict Kingsbury, Petros Mavroidis, Michael Reisman, and Richard Stewart for their helpful comments on earlier drafts. 595

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