8. Between Hegemony and Fragmentation: a Mini-History

These reaction formations are intellectually disappointing and politically dubious. Neither provides space for anything but a most formal debate about "what is international law for ?" and no space at all for responding to that question by reference to popular aspirations about peace, order and justice. A first step in trying to account for such aspirations is to accept that these notions are subject to political struggle and that even as they are formulated in universal terms, they are constantly appropriated by particular agents and interests so as to support their agendas and causes. To say that one's actions embody those of an "international community" is one such technique.⁷¹ They are aspects of hegemonic struggle, that is to say, struggle in which a particular claims to represent that which is universal.⁷² That the question "what is international law for ?" is a terrain of struggle is a natural aspect of a pluralistic society and a precondition for conceiving its government in democratic terms.

The hegemonic nature of the debate about international law's objectives may be illustrated in terms of its history. When Spain and Portugal at the end of the 15th century divided the non-European world between themselves by reference to a Papal directive, they claimed to be speaking as Christian powers on behalf of humankind as a whole. When the Spanish theologians Vitoria or Las Casas later were claiming that God had given the Indians a soul just as He had given it to the Spanish, a particular form of Christian scholasticism - Dominican theology - came to speak in terms of universal principles, equally constraining on the Princes and the Indians. And when Hugo Grotius in 1608 challenged the Iberian claims, he was redefining the objectives of international law within a hegemonic struggle that opposed a Reformation-inspired commercial universalism against the ancien régime of (Catholic) Christianity. The narrative of international law from those days to the 19th century may be depicted as a succession of natural law arguments that were united by their always emerging from some European intelligentsia that claimed it was speaking on behalf of the world as a whole. When de Emmerich Vattel in 1758 formulated his "necessary law of nations" in terms of the commands of natural reason, and found that it consecrated a balance of power between European sovereigns, he already filled the category of the "universal" with a profoundly particular understanding that was a part of the (European) Enlightenment.

Since the first appearance of the (modern) international law profession in Europe in the late 19th century, that profession imagined itself as, in the words of the Statute of the Institut de droit international (1873), the "juridical conscience of the civilised world". This understanding, too, was born in a cultural environment that imagined its own experience - which it labelled "civilization" - as universal and postulated it as the end-result of the development of societies everywhere. The civilizing mission enthusiastically propagated by late 19th century international lawyers was a hegemonic technique, embedded in an understanding of the law as not simply a technical craft or a set of formal instruments and institutions. It was a spontaneous aspect of "civilization" which had the natural tendency to become universal.

If the first world war destroyed whatever was left of the civilizing mission, it also gave rise to a series of efforts to articulate anew the universal basis of international law, sometimes in terms of a law-like movement of societies to ever more complex forms of division of labour and interependence,⁷³ sometimes through a reinstatement of the hierarchical principles that were a natural part of the law as a legal system.⁷⁴ Most of the reconstructive scholarship of the inter-war period, however, simply generalised the legal experience of European societies into the international level, bringing to existence a universal international law through private law analogies, conceiving the Covenant of the League of Nations as a constitution of the world and by allocating to the juristic class the function of "filling the gaps" in an otherwise primitive-looking legal system.⁷⁵ The particular European experience with the Rule of Law became the placeholder for the aspirations of peace and justice that lawyers saw was demanded by populations struggling with industrialism and conflict.

In the more recent post-war era, much of that kind of language - like the political liberalism with which it was associated - has lost credibility and come to seem little more than a facade over the activities of lawyers and diplomats working in international organisations and foreign offices. When somebody today claims to be acting on behalf on the "international community", we immediately recognise the hegemonic technique at work.⁷⁶ As against the pragmatic spirit of public international law, new specialisations carry ideals of universalism and progress. Recently, this has occasioned a lively debate about the "fragmentation of international law" - the emergence and consolidation of special regimes and technical sub-disciplines: human rights law, environmental law, trade law, the use of force and so on.⁷⁷ In each of such realms, particular interests and projects are projected as universal ones, resulting in normative and jurisdictional conflicts. In its Tadic Judgment of 1999, the International Criminal Tribunal for the Former Yugoslavia (ICTY) expressly deviated from the practice of the International Court of Justice, as laid out in its Nicaragua case in 1986 concerning the attribution of conduct by military irregulars to a State. To move from a standard of "effective control" to one of "overall control" significantly enhanced the accountability of foreign States indirectly involved in internal conflicts, constituting a shift of normative preference with respect to one set of international problems.⁷⁸ The continuing debate about the relevance of environmental, human rights or labour standards within the WTO system reflects a search for the relative priority of political objectives within WTO institutions as those priorities have not been set at the level of the relevant agreements themselves. The autonomy invoked by human rights regimes constitutes a subtle manoeuvre by human rights implementation organs to universalise their jurisdiction. "Dynamic" arguments and the object and purpose test allow the creation of a systemic bias in favour of the protected individuals that could be difficult to justify under traditional law.

Now "fragmentation" is not a technical problem resulting from lack of co-ordination: the normative preferences of environmental and trade bodies differ, as do preferences of human rights lawyers and international law "generalists".⁷⁹ Such differences are like differences between States: what is at issue is a hegemonic struggle where each institution, though partial, tries to occupy the space of the whole. Far from being a problem to resolve, the proliferation of autonomous or semi-autonomous normative regimes is an unavoidable reflection of a "postmodern" social condition and a beneficial prologue to a pluralistic community in which the degrees of homogeneity and fragmentation reflect shifts of political preference and the fluctuating successes of hegemonic pursuits.⁸⁰