The European Journal of International Law Vol. 20 no. 2 © EJIL 2009; all rights reserved
Universality of International Law from the Perspective of a Practitioner
* Judge at the International Court of Justice. This article was originally presented as the Keynote Speech at the opening session of the Biennial Conference of the European Society of International Law in Heidelberg on 4 September 2008
Email: simma{at}icj-cij.org.
 |
Abstract |
|---|
The ESIL Conference at which this article was originally presented as the Keynote Speech was devoted to the topic of "International Law in a Heterogeneous World". The article attempts to demonstrate that heterogeneity does not exclude the universality of international law, as long as the law retains – and further develops – its capacity to accommodate an ever larger measure of such heterogeneity. After developing three different conceptions, or levels, of what the term ‘universality’ of international law is intended to capture, the article focuses on international rules, (particularly judicial) mechanisms, and international institutions which serve the purpose of reconciling heterogeneous values and expectations by means of international law. The article links a critical evaluation of these ways and means with the different notions of universality by inquiring how they cope with the principal challenges faced by these notions. In so doing, it engages a number of topics which have become immensely popular in contemporary international legal writing, here conceived as challenges to universality: the so-called ‘fragmentation’ of international law; in close connection with this first buzzword the challenges posed by what is called the ‘proliferation’ of international courts and tribunals; and, finally, certain recent problems faced by individuals who find themselves at the fault lines of emerging multi-level international governance. The article concludes that these challenges have not prevented international law from forming a (by and large coherent) legal system. Most concerns about the dangers of fragmentation appear overstated. As for the ‘proliferation’ of international judicial institutions, the debate on fragmentation has made international judges even more aware of the responsibility they bear for a coherent construction of international law. They have managed to develop a set of tools for coping with the undesirable results of both phenomena. Despite some evidence of competition among international courts for ‘institutional hegemony’, such competition has hitherto been marked by a sense of responsibility on the part of all concerned. Thus, from the viewpoint of a practitioner, the universality of international law is alive and well; there is no need to force the law into the Procrustean bed of ‘constitutionalization’.