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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:
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.


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