EJIL: Talk!

International law in the UN Charter, the Universal Declaration of Human Rights, and other foundational treaties and conventions of the multilateral system entails a premise (and promise) of equal rights, the right to self-determination, and the fundamental equality of human beings. However, during the last 10 years and in the wake of the 2008 financial crisis inequality has once again moved to the centre of attention of a number of disciplines, most noteworthy perhaps economics, as well as politics.

We issue this Call for Papers to invite submissions reflecting on the ways that international law – its practice and scholarship – relates to inequality. We chose the plural – inequalities – as we do not intend, from the outset, to narrow the Symposium’s scope to particular forms or actualizations of inequality. Inequalities span access to, or enjoyment of, public resources, and/or state duties to ensure equalities of opportunity regardless of gender, religion, nationality, birth, political or other ideological convictions, status, among others. While the discussion on inequality and international law has been historically concerned with North/South disparities and the quest for equal distribution among states, recent decades have seen a rise in inequality within countries in affluent and weaker economies. Other characteristics of inequality today include the extreme concentration of income at the top and the shrinkage of the middle class in advanced economies. Inequalities persist also in the external relationships of states with other actors (state and non-state) in the international system – as enduring legacies of colonialism in economic development and in post-conflict peacebuilding; as ongoing asymmetries in the efforts to achieve accountability and international justice for victims of internationally wrongful acts; as well as through contested modes of governance over the world’s environment, global commons, and natural resources.  

The interplay between international law and inequality and the special trends related to inequality today invite further research and reflection. Developments such as the rising inequality within countries, the possible decline in inter-country inequality alongside economic growth in emerging market and developing economies challenge our existing legal framing and approaches to the problem of inequality and call for further analysis of the relationship between these trends and international legal principles, doctrines and institutions.

Thus, we invite contributions that conceptualize and problematize the notion of inequality and that examine its doctrinal significance and its usefulness and appropriateness as an analytical concept or as a common concern in international law. We further call for papers that address questions regarding empirical, quantitative and qualitative assessments of inequality within and across societies and states and that assess international law and institutions as cause as well as remedy to inequality. We welcome doctrinal, historiographical, genealogical and sociological engagements with past and present regimes, initiatives, institutions, and instruments and their relationship with inequality as well as biographical engagements with scholars and practitioners who in their work paid particular attention to the question of inequality in international law.

Finally, we welcome engagements with our responsibility as international lawyers. How do we practise international law ethically in light of persisting material inequality, racism and sexism in the world, in our societies, governments and workplaces. What visions or utopias might guide and invigorate our practices? To what extent can we identify persistent inequalities that also suffuse the ‘invisible college’ of international lawyers, and what can be done within international law from both academic inquiry and norms of professional practice?

The call is not restricted to a particular subfield of international law. We would be happy to receive proposals from all fields of international law, including the following themes:

Human Rights: Papers may interrogate the capacity of (social and economic) rights to remedy inequality, or engage with the thesis that (particular conceptions of) human rights detract from social justice concerns.

International Economic Law:Papers may address the question whether international economic law should and how it might allow for global redistribution or contribute to a transformation of political economy that reduces material inequality instead of enhancing it. Further clarification is needed how international economic law (together with transnational and national law) furthers the accumulation of wealth and capital as well as the concentration of corporate power. Contributions may assess calls for a new NIEO or a new Bretton Woods and evaluate them in light of historical experience and in the context of present geopolitical developments. Contributions may also confront the changing face of international economic law – particularly its deepening intersections with human rights law, international environmental law, climate law, among others – and assess how the international economic system engages, perpetuates, or redresses both latent and patent inequalities faced by individuals, groups, peoples, small nations such as low-lying island states, among others.

Sustainable Development Goals: 10 years to go until, by 2030, the SDGs shall be achieved, it may be a good time for an evaluation of their impact so far – not only as concerns the realization of targets, in particular of SDG 10 “Reduced Inequalities” – but also the effects of this governance framework on international law doctrine and the practice of governmental and non-governmental institutions. Can the polycentric approach to SDG governance truly address inequalities, when SDGs are articulated in the grey areas between hard law and soft law?

Migration Law: Given that extreme poverty and global inequality in living conditions are major reasons for global migration, does migration law adequately take account of these causes? Current government policies of exclusion and deterrence not only raise questions as to their conformity with international law, but call into doubt foundational normative justifications of global and national political order. Are instruments such as the Global Compact on Migration and the New York Declaration sufficient to eventually harden into multilateral or regional treaties recognizing shared norms in addressing both protections for migrants as well as the pressures on and opportunities open for receiving populations?

Climate Law: From its inception climate change law has had and still has to come to terms with various inequalities – including inequalities as concerns individual states’ contributions to climate change as well as inequalities as to how communities will be affected by climate change. How does climate law address these inequalities; how should it address them in order not only to effectively contain climate change, but to do so in an equitable manner?

After ‘After Hegemony’: The emergence of  Brazil, Russia, India, China, and South Africa (the BRICS) as a new hub of power in international relations, destabilizing processes in Europe, most evident in Brexit, and the decline of the US as the world’s hegemonic power have triggered new approaches to international law making in recent years.  These new approaches include a shift away from multilateralism toward bilateralism, regionalism and other forms of global governance. These processes are related to inequality in their cause and effects: Can we tie the growing unrest over inequality among different political groups worldwide to the turn away from existing international legal institutions? How are these ideological sensibilities and new forms of mobilization related to new modalities of international regulation? How will these new modalities influence global inequality in the future? 

We are issuing here a Call for Papers. International lawyers from practice and academia as well as scholars from related disciplines are invited to send an abstract of 500 words. Abstracts should not only set out the prospective papers for inclusion in the symposium; they should also concisely formulate the questions addressed as well as the method and materials employed in the proposed research. We will accept proposals for research papers of 10-12K words as well as shorter Think Pieces of 5-7K words.

The deadline for the abstracts is 1 November 2019. Draft papers of those abstracts selected by a committee composed of members of the Editorial Boards of EJIL will be expected by 29 May 2020. We are considering a workshop in June 2020, at a location to be determined, to discuss the drafts. Funding towards the travel expenses of some participants may be available. Final drafts will be expected by 2 November 2020. 

Abstracts, accompanied by a recent CV in pdf format, are to be sent to EJIL’s Managing Editor at anny.bremner {at} eui(.)euby 1 November 2019.

Though Gordon and Perugini deserve praise for casting light on the serious problem of targeting hospitals, their analysis and conclusion suffer from two ills. They misinterpret the law related to the targeting of hospitals, and they turn a blind eye to all the empirical data relating to the unacceptable hazards and damage caused to health care during armed conflicts. Their recommendation seems to be detached from the world we all live in.

The prevailing law is relatively clear, and it grants a strongyet contingent protection to hospitals. As I mentioned in my Reply,“Save the Injured – Don’t Kill IHL: Rejecting Absolute Immunity for ‘Shielding Hospitals’”,the protection granted to hospitals has both institutionally inherent and personal justifications. The former derives from their humanitarian mission and is contingent upon their actual use in light of this purpose. The second justification, namely the vulnerability of their patients and medical staff, is always present. These weaknesses require special scrutiny and legal adjustments, and the damage multiplier of the sick and wounded should be taken into consideration when assessing the collateral damage that might be caused to them. Gordon and Perugini seem to misunderstand this roadmap of the law, which is not subject to interpretation by states, as they argue.

They appear to ignore the fact that the law grants different layers of protection to hospitals: the special institutionalprotection granted to any hospital, the cumulative requirements for identifying an object as a legitimate military target, and the constraints of the proportionality request in IHL. I have the impression that Gordon and Perugini also ignore the precautionary requirements in IHL, relating to all civilians in general and the one afforded only to medical units in particular. Their misinterpretation turns all these different layers of protection into a single one that can very easily be removed by claiming that the attacked hospital is a shielding hospital. Indeed, another mistake they seem to make relates to the burden of proof. The law is not satisfied merely with an attacker’s arguments as regards a shielding hospital; a heavy burden lies on its shoulders to prove all the facts justifying the attack. Gordon and Perugini appear to assume, unfoundedly, that the burden lies on the attacked. Furthermore, by limiting their prism to constraining attackers, they don’t pay any attention to the binding obligation on all belligerents, which is not limited to the attacker, to insulate hospitals from the hazards of war to the extent possible. The belligerent who controls the hospital’s territory thus is required by law to take concrete measures aimed at achieving this goal.

Indeed, as presented in my Reply, the law as it stands allows the targeting of hospitals only as an exception and not as a norm, as argued by Gordon and Perugini. Unfortunately, in the absence of effective international law enforcement, the shielding argument can easily serve as a pretext for transgression, a hazard that most in bello and ad bellum rules are subject to. But the answer to this manipulation challenge doesn’t lie in changing a normatively desired rule – e.g., cancelling the right of self-defense – but rather in improvinglaw enforcement and compliance. This would require that the facts be established in each case of attack and the law then applied to it, distinguishing between the bona fide mistakes of law-abiding militaries and intentional criminal targeting. 

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