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1 Eur. J. Legal Stud. 8 (2007-2008)
International Law: Constitutionalism, Managerialism and the Ethos of Legal Education

handle is hein.journals/ejls1 and id is 10 raw text is: 




    INTERNATIONAL LAW: CONSTITUTIONALISM, MANAGERIALISM
                  AND THE ETHOS OF LEGAL EDUCATION

                            Martti Koskenniemi*


 The judgment of the European Court of 7ustice in the Mox Plant case in 2oo6 is striking
 in its narrowness of vision. It imagines European law in fully autonomous terms,
 analogous to the national laws of European States under the strict dualism of late-I9th
 century jurisprudence. But Mox Plant is only one example of the increasing
fragmentation of law beyond the nation-State into more or less autonomous technical
boxes each geared to realise a particular ethos, the structural bias of a particular form
of expertise. Not only European law but also trade law human rights law
environmental law are examples of such boxes, systems for the management of
particular types of problem from a particular perspective. But law ought not to be
conceived in managerial terms. It should not be reduced into an instrument of the
preferences of those who manage this or that technicalproblem-area. Legal training - in
the European University Institute and elsewhere - should be about the conditions and
limits ofparticularforms of managerial authority. And if education in international law
should be about how to attain a universalperspective, in today's conditions this means the
development of a critical sensitivity to the forms of international power exercised though
particularforms of technical expertise.

Last May the European Court of Justice gave its judgment in the MOX Plant
case. The case had to do with the operation of a nuclear reprocessing plant
at Sellafield, United    Kingdom.     A    complaint   had    been    raised
by Ireland against the United Kingdom on account of the potential
environmental effects of the plant under two international treaties. One was
the OSPAR Treaty related to the protection of the environment of
the North Sea. The other was the United Nations Convention on the Law of
the Sea from 1982.     Having heard about these proceedings, the European
Commission, for its part, raised a claim against Ireland on account of the
latter's having taken the United Kingdom -another member State of the
European Union- to international arbitration, that is to say, to be subject to
legal scrutiny under rules other than those of European law by bodies other
than European ones.

The Court found against Ireland on all grounds of the Commission's
complaints. Ireland had failed to respect the exclusive jurisdiction of the
ECJ and to cooperate with Community organs in accordance with the EC
treaty.ill

For an international lawyer, this is a stunning case. Not, however, because it
was unprecedented, on the contrary. Since the late i9th century, nation-States
understood one aspect of their sovereignty as the unconditional primacy of
their legal order to anything imposed from the outside. The MOX Plant case is

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