The Potential of International Law: Fragmentation and Ethics

Abstract

AbstractFragmentation 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, are 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 not only considers the Report to be naturally inhibited by the institutional environment in which it was constructed, but furthermore finds that the Report's rule-centric approach to a polarized discourse results only in the propagation of ethical deficiencies that define the classical approaches to fragmentation: constitutionalism and legal pluralism. The Report's formalistic approach is one that 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 that define proliferating tribunals. The very same preferences continue to disable the ethical and political emancipation of the legal professional. The author believes 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 that requires the rediscovery of our consciously enlightened professionals. This not only requires the development of a professional pluralism but the understanding that professional existentialism is not a reward, but rather the transpiring mindset of noble objectives.