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Destination: the Wasteland of Academic Overproduction (Part 1)

Published on February 3, 2020        Author: 
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We, international lawyers, publish too much, way too much. We know it too well and yet continue to produce scholarship by the truckload. We carry on with writing even if it comes at the expense of the breadth of our reading or the quality of our teaching. We persist to write, quite sadly I must say, even if it ruins our days, our nights, our family, our health as well as the environment. We even feel depressed and complain to our dean when the many other duties of 21st century academic life obstruct our writing. What is even more remarkable is that we remain committed to the frenetic production of scholarship although we are well aware that most of our works end up dying unnoticed in the wasteland of academic overproduction.

Anyone in the field is familiar with this dismal state of affairs. It would be of no avail to dwell upon the foregoing and lament one more time academic overproduction and its externalities – of which I am complicit like so many of us. Instead, in this essay, I would like to think it is possible to make the wasteland of academic overproduction in international law a bit less of a scandal. More specifically, I would like to believe that, in the wasteland of academic overproduction, there are more than just truckloads of academic works that should never have been produced. I would also like to suggest concrete ways to make our works more innovative and imaginative with a view to reducing the amount of academic waste produced by international lawyers. 

In the first part of this essay (Part 1), I will show how the format of our research output determines the space available for innovative and imaginative thinking. On this occasion, I will make the – possibly polemical – argument that edited collections are more likely to nest innovative and imaginative pieces of work than refereed journals. In the second part of this essay (Part 2), I will suggest some concrete actions to maximize innovative and imaginative scholarship, thereby possibly reducing the amount our works that end up in the wasteland of academic overproduction.

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Announcements: UK-EU Negotiations for an Agreement on Their Future Relationship; Israeli National Election Webinar; Stanford Law School Vacancy; Changing Dimensions of Rule of Law Colloquium; Women’s Human Rights in the Twenty-First Century Conference; iCourts / Pluricourts PhD Summer School; Frankfurt Investment Law Workshop; ILA British Branch Spring Conference; CfS International and Comparative Disaster Law Essay Contest; Sustainable Ocean Project Conference; UN Audiovisual Library of International Law

Published on February 2, 2020        Author: 
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1. UK-EU Negotiations for an Agreement on Their Future Relationship: What, How, When, and Why? The City Law School and the Jean Monnet Chair in EU Law would like to invite you to the following panel discussion: UK-EU Negotiations for an Agreement on Their Future Relationship: What, How, When, and Why? 12 February 2020 at 18:30 (City, University of London, C309 Tait Building). This panel brings together experts of unparalleled experience to discuss the negotiation between the UK and the EU for an agreement on their future relationship. Drawing on their insights into negotiating with the EU, they will address questions about both the substance and process of this new episode of Brexit. The speakers include: Chair: Professor Sir Alan Dashwood QC (Henderson Chambers), Sir Ivan Rogers (Former UK Permanent Representative to the EU) Christophe Bondy (Former Senior Counsel to Canada in the Canada-EU CETA negotiations). Welcome: Professor Panos Koutrakos (City, University of London). Attendance is free – please sign up here. The event will be followed by a wine reception.

2. What You Need to Know About the Upcoming Israeli National Election Webinar. The Law Library of Congress will be presenting a webinar, “What You Need to Know About the Upcoming Israeli National Election,” on 27 February at 10:00 a.m. eastern. Information on the webinar and registration instructions appear here.  This is part of a new series of webinars by the Law Library on foreign and comparative law. If you have any difficulties registering for the webinar, please call +1-202-707-5080. 

3. Stanford Law School Vacancy. Stanford Law School seeks to hire a teaching fellow for the LLM Program in International Economic Law, Business & Policy. The appointment is for a two-year position with the possibility of a third year by mutual agreement, beginning in August 2020. Full details are available here. The deadline to apply is 15 March 2020. Read the rest of this entry…

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Brexit

Published on January 31, 2020        Author: 
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This, I think, is worth reposting tonight:

I’ve seen you change the water into wine
I’ve seen you change it back to water, too
I sit at your table every night
I try but I just don’t get high with you
I wish there was a treaty we could sign
I do not care who takes this bloody hill
I’m angry and I’m tired all the time
I wish there was a treaty, I wish there was a treaty
Between your love and mine

Ah, they’re dancing in the street—it’s Jubilee
We sold ourselves for love but now we’re free
I’m so sorry for that ghost I made you be
Only one of us was real and that was me


I haven’t said a word since you been gone
That any liar couldn’t say as well
I just can’t believe the static coming on
You were my ground, my safe and sound
You were my aerial

Ah, the fields are crying out—it’s Jubilee
We sold ourselves for love but now we’re free
I’m so sorry for that ghost I made you be
Only one of us was real and that was me

I heard the snake was baffled by his sin
He shed his scales to find the snake within
But born again is born without a skin
The poison enters into everything

And I wish there was a treaty we could sign
I do not care who takes this bloody hill
I’m angry and I’m tired all the time
I wish there was a treaty, I wish there was a treaty
Between your love and mine.

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Filed under: Brexit, EJIL Analysis
 

Intergenerational Reflections on International Law: An Essay from Pierre Marie Dupuy

Published on January 31, 2020        Author: 
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The international legal system established in 1945 can be seen, in its very design, as an incarnation of western rationalism.  Like that rationalism, it implicitly embodies a certain ideology of progress. In terms of its philosophical underpinnings, it would seem to be heir to the philosophy of the Enlightenment and the Aufkärung despite the fact that a number of its most influential advocates came from countries closer to Anglo-Saxon utilitarianism than to Kantian constitutionalism. This immediately poses a question therefore: could this set of norms claim in the long term to be truly universal in scope ?

Despite the ideological neutrality traditionally professed by the proponents of legal positivism, contemporary international law is founded on a particular western tradition. That tradition is itself based on the belief that subordinating the conduct of States to a common law of nations, recognised by all as valid and legitimate, will progressively bring about a gradual move away from if not ultimately a renunciation of any recourse to force.  Kant seems to be its most inspired prophet in that regard, in particular in his essay Perpetual Peace which seeks precisely to lay the foundations of a true legal cosmopolitanism, propounded in the name of all peoples. Kant remains moreover one of the crucial inspirations behind a shift away from metaphysics, in particular in terms of his philosophy of knowledge. Nevertheless, the project for perpetual peace he inspires, itself has a prophetic dimension found again in the Charter of the United Nations: that instrument, proclaimed in the name of “the peoples of the United Nations determined to save succeeding generations from the scourge of war … and to reaffirm faith in fundamental human rights, in the dignity and worth of the human person …,” presents itself as a Promise.  It is an ideal purpose assigned to the community of peoples, implicitly founded on the sediments laid down in the collective conscience by a particular tradition, one which is primarily Christian but also discernible in other monotheistic systems.

At the same time, the text adopted in San Francisco in 1945 took the risk of claiming to be valid here and now, that is to say, from entry into force of the law which the Charter of the United Nations represents, ideally affirmed as a universal constitution in the Kantian sense updated in that regard by Habermas. There is therefore in any event a tension and a temporal contradiction between the law and the promise or, to put it another way, between the time needed to bring the project to fruition and the immediacy it claims.

The rationale behind this wish not to stop but to stabilise history by subjecting it permanently to the reign of reason has much to do with the horror, albeit in the beginning partly underestimated, of the Holocaust. Never again! We cannot go backwards without the risk that the unthinkable which nevertheless came true will happen again. This Promise is therefore also founded on a turning back, turning back Barbarism, which the Second World War had just shown could reach previously unparalleled dimensions, even in one of the countries which had contributed most to western humanist philosophy.

A “directional predication”, to borrow an expression from Alain Badiou, the Charter not only announced a new era but affirmed a rupture, a new departure in the history of peoples and their States at the same time as it enshrined a universal dimension of the human person (prefiguring the emergence of humanity as a subject of international law, which appeared gradually from the 1970s). It is in that aspect that we must look for its constructive value which would lead Habermas to conclude that it is constitutional, a term admissible in particular admissible when used metaphorically.

There were many who from the outset have thought that the project enshrined in the Charter was merely an unattainable ideal. Nevertheless, in the first decades, the myth of progress applied to the law if not always to international relations could more or less give the impression that it was working. Admittedly, the Cold War brought back tensions, but at the same time it kept out of direct conflicts, at least among the permanent members of the Security Council. The Security Council, it must be said, remained paralysed for most of its life, but it was in certain, especially normative, respects, beneficially replaced by the dramatic rise of the General Assembly taken as a World Forum, at least until the mid-1980s. The “outlawry of war” movement  had crumbled, but official recognition by all parties of the fundamental legitimacy of the principle of the renunciation of force in international relations, enshrined in Article 2.4 of the Charter, nevertheless remained in place. The right of the “international community as a whole” took over from claims for the “right to development”, the new incarnation of the right of peoples. There was a growing impression, then, at least after the Cuban missile crisis (1963), that albeit not ruling out all danger of war, the Charter, supplemented by the United Nations Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States (1970), gave all parties a renewed basis for “peaceful coexistence” and even more “cardinal” and “intransgressible” principles, as the International Court of Justice would call them in 1986 and ten years later.

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A critical assessment of the Government of Israel’s memorandum to the ICC – Part II

Published on January 30, 2020        Author: 
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In my previous post, I argued that contrary to the view of the GOI, a Palestinian state has existed since 1919, and a Palestinian government was established – even if momentarily – in the territories occupied by the armed forces of Egypt and Jordan during the 1948 war following the termination of the mandate. This was known as the All-Palestine Government (APG). Although Jordan was opposed to the leadership of this government, it was recognised by all the other members of the Arab League. Jordan also recognised the sovereignty of the Palestinians living in the areas under its control in 1948-1949 when it sought their consent to the merger with Transjordan. The Act of Union was adopted by a parliament comprised of twenty Jordanian representatives and twenty Palestinian representatives following an election held in both territories. The Act recognised the separate identity of Palestine and the right of the Palestinian people to self-determination.

In addition, I explained that the UN Partition Plan provided for the establishment of an Arab state and a Jewish state with a special status for Jerusalem. This resolution has never been abandoned by the international community but has been repeatedly affirmed for more than seventy years. In the second part of this post, I criticise the argument in the GOI memorandum that recognition cannot be constitutive of statehood, that sovereignty over the West Bank and Gaza is in abeyance, and that the Palestinian state does not meet the criteria for statehood in international law.  Read the rest of this entry…

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A critical assessment of the Government of Israel’s memorandum to the ICC – Part I

Published on January 30, 2020        Author: 
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On 20 December 2019, the Prosecutor of the International Criminal Court (ICC) published a 112-page document requesting that Pre-Trial Chamber 1 rule within 120 days on the Court’s territorial jurisdiction in the situation in Palestine. On the same day the request was made public, the Government of Israel (GOI) published a 34-page memorandum of the Office of the Attorney General (GOI memo) arguing that the ICC lacks jurisdiction over the “Situation in Palestine”.

The GOI memo was prepared by a joint team from the Ministry of Foreign Affairs, the Ministry of Justice, and the National Security Council. In the memo, the GOI argues, inter alia, that the purported accession by Palestine to the Rome Statute does not fulfil the substantive requirement for the Court’s jurisdiction because UNGA resolution 67/19 did not determine the substantive legal question of whether a sovereign Palestinian state exists under international law. In the GOI’s view, no Palestinian state has ever been in existence; sovereignty over the West Bank and Gaza is in abeyance; Palestine does not meet the criteria for statehood under international law; Palestine’s claims regarding recognition are misleading; and the scope of Palestine’s territory is undefined.

In many respects, the GOI memo foreshadowed the Trump administration’s “deal of the century”, which refers to a “future State of Palestine” and envisages the annexation by Israel of substantial parts of the West Bank (see the map in Appendix 1). The deal of the century also calls on the Palestinians to dismiss “all pending actions” against the State of Israel and the United States, and any of their citizens, before the International Criminal Court and the International Court of Justice.

I had already anticipated some of the arguments that appeared in the GOI memo, which had been raised before, and which I have criticised previously (see here, here, here, here, and here). I will not repeat what I have written elsewhere. Instead, I will advance some additional arguments as to why the legal arguments advanced by the GOI in the memorandum may be open to challenge. In so doing, I do not address the argument that Palestine is a state for the purpose of the Rome Statute, which has been addressed by the Prosecutor. Instead, I argue that Palestine is a state under general international law, and that sovereignty over the West Bank and the Gaza Strip is not in abeyance. In Part II, I explore issues relating to self-determination, recognition, and effective control.

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Breaking new ground? The CERD Committee’s decision on jurisdiction in the inter-State communications procedure between Palestine and Israel

Published on January 29, 2020        Author: 
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2018 marked the year in which the CERD Committee received its first three inter-State communications under Art. 11 (1) CERD (an overview of the procedure is offered here). This was for good reason referred to as a historic development, given that this was the first time ever that such procedure has been used under any of the universal human rights treaties.

While the CERD Committee then issued its decisions on the jurisdiction and admissibility of two inter-State communications brought by Qatar against Saudi Arabia and the United Arab Emirates respectively in August 2019 already, it took the Committee until 12 December 2019 to also render its decision (available in three parts here) finding to have jurisdiction concerning the communication submitted by Palestine against Israel.

This decision, to which five Committee Members attached a dissenting opinion, which constitutes a highly unusual event in the practice of the Committee, deals with fundamental questions of treaty law, human rights law and the nature of the inter-State communications procedure laid down in Arts. 11 – 13 CERD.

Background of Palestine’s communication

As is well-known, Palestine was admitted to UNESCO in 2011 and since then qualifies as a member of one of the UN specialized agencies within the meaning of Arts. 17 (1) and 18 CERD, containing the so-called ‘Vienna formula’. On 2 May 2014 Palestine then deposited its instrument of accession to CERD. Acting as depositary, the Secretary-General of the UN accepted Palestine’s accession to CERD. It ought to be noted, however, that following Palestine’s accession to CERD Israel, which has been a State party to CERD since 1979, objected to this accession stating:

“The Government of Israel […] does not consider ‘Palestine’ a party to the Convention and regards the Palestinian request for accession as being without effect upon Israel’s treaty relations under the Convention. “

Notwithstanding, the CERD Committee has ever since treated Palestine as a State party of the Convention, inter alia by considering its first State report under Art. 9 CERD. Read the rest of this entry…

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The Amendments to the Russian Constitution: Putin’s Attempt to Reinforce Russia’s Isolationist Views on International Law?

Published on January 29, 2020        Author: 
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On 15 January 2020, in his state-of-the-union address, President Putin proposed a number of amendments to the 1993 Constitution of the Russian Federation, including the ones prescribing to redistribute the president’s power in favour of the parliament and a vaguely defined but powerful body called the State Council. The speech has made international headlines (see here, here, and here), and was followed by the resignation of Russian Prime Minister Medvedev (who served in this position since 2012) and the entire cabinet. However, apart from the proposed amendments to the Constitution which concern the changes in balance of power in the Russian Federation, Putin also touched upon a number of issues significant for international law and representative of Russia’s view on international law. This post will discuss two of such proposed amendments in turn: (i) securing the prevalence of the Russian Constitution over international treaties and decisions of international bodies; and (ii) limiting political rights of individuals holding dual citizenship or residence permit in another state.

Securing the Prevalence of the Russian Constitution over International Treaties and Decisions of International Bodies

In his speech, President Putin proposed an amendment which will ‘directly guarantee the priority of the Constitution in the Russian legal space’. The Russian President argued that the Russian Constitution should provide that international treaties and decisions of international bodies should not be valid on the Russian territory, if they contradict the Constitution of the Russian Federation.

This proposal is perplexing to say the least, since the current Constitution of the Russian Federation already prescribes that the Constitution takes precedence over international treaties. Article 15(1) of the Constitution provides that ‘the Constitution of the Russian Federation has the highest legal force’. It also stipulates that the laws and other legal regulations must not contradict the Constitution. Article 15(4) provides that ‘generally recognized principles and norms of international law and international treaties of the Russian Federation are an integral part of its legal system’. The same provision also specifies that international treaties prevail over the laws of the Russian Federation, if there is a conflict. While Article 15 does not say so expressly, if read as a whole, it provides that even if the international treaties prevail over the laws, the Constitution still has the highest legal force. Read the rest of this entry…

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Conflicting Conceptions of Sovereignty: A Response to Professor Blankenagel

Published on January 28, 2020        Author: 
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My thanks to EJIL for this opportunity to respond to Professor Alexander Blankenagel’s critique of my article, “The Relationship Between the European Court of Human Rights and the Constitutional Court of the Russian Federation: Conflicting Conceptions of Sovereignty in Strasbourg and St. Petersburg.”

Although I also thank Professor Blankenagel for his reply, I admit to some difficulty recognizing my article in his criticism of it. He only lightly engaged its core argument, focusing mostly on peripheral topics. Below is a quick summary of my main points, followed by responses to a few of his outlying critiques.

The Core Argument: Chekhov’s Gun

A relatively new Russian law expands the jurisdiction of the Russian Constitutional Court (RCC) to pick-and-choose the judgments of the European Court of Human Rights (ECtHR) that it will allow to be enforced in Russia. That law has been used twice and the evidence suggests that these cases were carefully selected six months before the law was even adopted. As Anton Chekhov admonished, “Don’t place a loaded gun on the stage if no one plans to shoot it.” Read the rest of this entry…

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Populist Governments and International Law: A Rejoinder to Paul Blokker and Marcela Prieto Rudolphy

Published on January 27, 2020        Author: 
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I am grateful to Paul Blokker and Marcela Prieto Rudolphy for their thoughtful replies to my article on “Populist Governments and International Law”. In that article, I inquire into the question as to how populist governments contribute with their argumentative strategies and governmental practices to current perceptions of a crisis of and related shifts in the international legal order. Identifying such shifts poses methodological challenges. To address these challenges, I have relied on a formal conception of populism, focussed on some of the basic rules and structures of the international legal order and used the heuristic tool of ideal types to assess populist governments’ stance to international law. In particular, the criticism by Marcela Prieto Rudolphy takes an issue with my approach and thereby reflects three wide-spread strands of doubt about how to evaluate structural shifts: a too high level of abstraction of categories applied, the claim that the international law does (no longer) represent a unified object of observation and the use of ideal types as a heuristic instrument.

Prieto Rudolphy doubts that it is fruitful to reflect upon “a populist approach to international law” and, instead, advocates to examine “populist approaches to this and that area of international law”. First, she is sceptical whether the analytical category of populism as such is useful, if it does not take into account the specific understanding of “the people” on which different emanations of populism are said to rely. She assumes that these different understandings will lead to “a range of positions” which cannot be reconciled in one analytical category. She emphasises that turning to “the underlying ideologies” (e.g. left-wing vs. right-wing populism) “would be a welcome change”. Paul Blokker agrees with her in that “varieties of populism need to be taken into account”. While it may well be a valuable contribution to analyse the approach of specific populist governments to specific branches of international law, I disagree with the exclusiveness of Prieto Rudolphy’s claim, not least because evaluating structural shifts in the international legal order requires a multitude of different methodological approaches. Read the rest of this entry…

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