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Koskenniemi the scholar vs. Koskenniemi the commissioner

Sahib Singh of the Uni­ver­si­ty of Vien­na has post­ed a paper on SSRN titled The Ethics of Frag­men­ta­tion: Formalism’s Fal­lac­i­es and the Poten­tial of Inter­na­tion­al Law.  The paper is inter­est­ing not least because it takes a seri­ous and crit­i­cal work at the frag­men­ta­tion report of 2006, pre­pared for the Inter­na­tion­al Law Com­mis­sion by Mart­ti Kosken­nie­mi.  Singh’s paper inves­ti­gates the work of a first-rate schol­ar close­ly affil­i­at­ed with NYU Law’s Hauser Glob­al Law School pro­gram, and for that alone it would be worth read­ing for NYU inter­na­tion­al law stu­dents.  But Singh’s paper is fas­ci­nat­ing because it inves­ti­gates the ten­sion between Koskenniemi’s per­son­al work and the report.  Abstract after the jump.

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.

Thanks to Legal The­o­ry Blog for the link.

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.

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