The Potential of International Law: Fragmentation and Ethics

Abstract

Fragmentation discourse provides a rare opportunity for international lawyers to review what has gone and what is to come: it is in short, a chance to learn lessons of the past. The subjects and the looking-glass, so to speak, is the International Law Commission’s Report on the Fragmentation of International Law and its author, Martti Koskenniemi. It is the conclusion of this paper that the legal world’s approaches to fragmentation, reflected in the ILC Report, represent a deficiency in ethical responsibility. The author considers the Report not only to be naturally inhibited by the institutional environment in which it was constructed, but furthermore finds that the Report’s advocation for a rule-centric approach to a polarized discourse results only in the propagation of ethical deficiencies which define the classical approaches to fragmentation: constitutionalism and legal pluralism. The Report’s formalistic approach is one which attempts to find a middle ground between the stated polarities and in doing so it not only advances the myths of a system and of coherence in international law, but enables the preferences which define proliferating tribunals. The very same preferences which continue to disable the ethical and political emancipation of the legal professional. The author conceives the future of international law can no longer remain chained to rule centrism against political preferences, but rather lies in the study of the legal professional. International law is a project which requires the Kantian moral politician or Kierkegaard’s man of faith, the consciously enlightened professional. In the view of the author, international law’s endeavor should first be the development of a professional pluralism. Engaging in this struggle requires the understanding that professional existentialism is not a reward, but rather the transpiring mindset of noble objectives.

Keywords: fragmentation, ethics, International Law Commission, ILC Report on Fragmentation, formalism, deformalization, Koskenniemi