Cohen: Finding International Law, Part II: Our Fragmenting Legal Community

Harlan Grant Cohen (Univ. of Georgia - Law) has posted Finding International Law, Part II: Our Fragmenting Legal Community (New York University Journal of International Law and Politics, forthcoming). Here's the abstract:

Is there an “International Community?” This Article suggests that there is not, that the oft-discussed fragmentation of international law reveals that there are in fact multiple overlapping and competing international law communities, each with differing views on law and legitimacy.

This Article reaches this conclusion by taking a fresh look not only at the sources of fragmentation, but at the sources of international law itself. Building on earlier work rethinking international law’s sources and drawing insights from legal philosophy, compliance theory, and international relations, this Article takes a closer look at three areas that have challenged traditional interpretations of international law, (1) human rights, (2) global administrative law, and (3) the law applied by international tribunals. What it finds is that the challenges posed by each area run much deeper than doctrine, that in fact, in each area a new legal community has formed that no longer shares traditional international law’s understanding of legitimate lawmaking. These legal communities no longer recognize a single, unifying doctrine of sources.

Such a realization puts conflicts over international law in a new light. To the extent that debates between human rights and international humanitarian law or trade law and the environment represent debates over the standards for legitimate lawmaking rather than conflicts over interpretation, doctrinal fixes will never fully resolve them. Instead, they must be viewed as true conflicts of law; resolutions must mediate between the overlapping demands of different legal communities.