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This essay – a contribution to a workshop organized to assess Martti Koskenniemi’s scholarship – focuses principally on Koskenniemi’s work as a member of the International Law Commission (ILC) from 2002 to 2006, and in particular his chairmanship of an ILC study group. Unlike Koskenniemi’s scholarship, which is solely his own or perhaps his in conjunction with a co-author, the ILC study group report on Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law (Report), and the 42 associated conclusions, were a group effort, though it is well-understood that Koskenniemi was the driving force in writing, editing, and finalizing them. In considering Koskenniemi’s scholarly contributions to the field of international law, I think it reasonable to take into account this Report, especially since part of my interest lies in assessing the Report in relationship to Koskenniemi’s scholarship.

In briefly “deconstructing” the Report, the essay examines three different vantage points. First, is the Report mostly a scholarly think-piece that will sit on the jurisprudential shelf in the library – a self-contained intellectual regime of a sort? Or is the Report useful for the practical lawyer toiling in the field of international law, one that will prove illuminating for emerging areas of international law in the years to come? Second, how does the Report relate to Koskenniemi’s own scholarship; might the Report be viewed as a confirmation or extension of that scholarship, or – more provocatively – a betrayal of it? Third, will the Report have “legs” in helping point the direction for future work by the ILC and other comparable institutions? Does it suggest new ways of thinking about codification and progressive development of international law?

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GWU Legal Studies Research Paper No. 2013-109; GWU Law School Public Law Research Paper No. 2013-109

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