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When I started teaching international law more than twenty years ago, it was
still possible to be an international law generalist. In the U.S. legal academy,
the likes of Henkin, Schachter, Franck, and McDougal covered the full range of
public international law subjects. (Some even managed to stay on top of private
international law, too.) Today, being an international law generalist is
impractical; it's simply too difficult to keep current with the breadth
of international law. From the scholar's perspective, it's a case
of “be careful what you wish for.” A generalist international law
orientation used to be possible because there was so little of it, both on the
ground and in the scholarship. Those mid-century saplings—the various
distinctive fields within international law—have grown to mature oaks,
and expert knowledge of their many crevices and branches is beyond the capacity
of any single observer. Not only does international law defy individual mastery,
but the level of specialization now makes it difficult to talk across these
different areas. My colleague in international criminal law might as well be a
domestic family law person for purposes of professional points of connection. We
both attend the ASIL Annual Meeting, but we no longer really speak the same
Refugees dominate contemporary headlines. The migration “emergencies” at the southern U.S. border and the southern
borders of the European Union, as well as the “crisis” in the Bay
of Bengal, have drawn global attention to the dire inadequacies of the
international refugee regime, even as extended through various principles of
non-refoulement, in governing modern migration flows. Political
responses to these mass movements, from the Brexit vote to the election of
Donald Trump and his executive order halting the refugee resettlement process in
the United States, have threatened the viability of refugee law's
protections. At the policy level, numerous high-level stakeholders have convened
in different constellations, through the United
that these meetings have accomplished little thus far in terms of law
reform. The refugee law paradigm consumes so much space in the
imagination of international lawyers and policymakers that it is hard even to
begin to conceptualize an alternate approach to global migration law. The fear
of losing even the narrow ground staked out to protect refugees stiffens the
resistance to change. Proposals for reform tend to follow the tired old path of
suggesting ways in which the refugee definition can be expanded to include new
groups of migrants (ranging from climate change refugees to anyone fleeing
serious human rights abuses) rather than critically evaluating the structure of
global migration law more broadly.
To speak of a “global migration law” is challenging, perhaps even
quite provocative, in an era in which walls are being continuously erected at
borders and seas transformed into mass graves. The ambition of international law
often seems to be to rescue what can still be saved: the refugee regime for
example, or minimally decent treatment of migrants once under the jurisdiction
of a third country. A global law of migration, then, might be as much if not
more the law of obstacles to human mobility than a body of law premised on a
more fundamental commitment to freedom of movement.
migration law (hereinafter IML) can be described and conceptualized as
a deconstructivist architecture both literally and metaphorically. It
is an architecture of fragmentation based on dissonance and asymmetry that
questions the traditions of harmony, unity, and stability. Initiated by the
French philosopher Jacques Derrida, the deconstructivist architectural movement
distorts the conventional oppositions between form and function, center and
margin, outside and inside.
Migration is already a significant global phenomenon, and it is likely to become
more so. According to a recent World Bank
report, there are two hundred million international migrants. The
study reports that “migration pressures” will continue “for
the foreseeable future.” It will take “decades” to close
income gaps between developed and developing countries; in 2015, the ratio
between the average income of the high-income countries and that of the
low-income countries stood at 70:1. A “well-documented demographic
divergence” will add further pressure: “Population aging will
produce large labor-market imbalances and fiscal pressures in high-income
countries as the tax base narrows and the cost of caring for the old
surges.” This increase in demand will complement an increase in supply.
“If current fertility and national employment rates remain as they are in
the developing world,” the Bank reports, by 2050 “nearly 900
million [will be] in search of work.” Climate change and disasters will
have a more modest impact on the international level, although “increased
drought and desertification, rising sea levels, repeated crop failures, and more
intense and frequent storms are likely to increase internal
migration.” And these numbers—measuring persons outside their home
country for more than a year—do not include hundreds of millions of
persons who cross international borders for shorter periods of time: tourists,
students, temporary workers, business persons, asylum-seekers.
In July 1967, one month after Israel's occupation of the West Bank, Gaza
Strip, Sinai Peninsula, and Golan Heights, Israel's Military Advocate
General (MAG), Colonel Meir Shamgar, appeared before a Knesset committee to
discuss the Israel Defense Forces (IDF)’s duties in the areas under its
control. Col. Shamgar had led the MAG Corps in the preparations in the event
that a future war would find the army occupying beyond Israel's borders.
Col. Shamgar began his presentation by stating:
In terms of the legal background, our point of departure is that we have
to respect both the fundamental pursuits of the State of Israel as its
military forces begin to control an area that has been liberated by the
IDF, and the rules of public international law that apply to the actions
of any military in control of an area that was, until its entry, subject
to the sovereignty of a foreign political entity.
The guiding rules in this realm are the rules of public international
law, which are reflected in The Hague Regulations of 1907 … and
in the … Fourth Geneva Convention on the Protection of Civilians
in Times of War.
Theodor Meron's editorial
comment revisits the question of the legality of settlements. I will
try to offer an additional perspective which looks at the underlying values of
the laws of occupation and how these impact the legal analysis of settlement
activity in the Israeli context.
One of the unique features of Israel's legal, military, and political
control over the Occupied Palestinian Territories (OPT) has been the review by the Supreme
Court of Israel of the actions and decisions of the authorities in
those territories. Sitting as a High Court of Justice that has the competence to
review the actions of all persons exercising public functions under law, the
Court has entertained thousands of petitions relating to the legality of such
varied actions as house demolitions, deportations, land requisition, entry
permits, and establishment of settlements. There can be little doubt that the
very existence of judicial review has had a restraining effect on the
authorities. While the Court has not ruled against the government that often,
and has provided legitimization for acts of dubious legality, such as punitive
house demolitions and deportations, it has handed down some important
rulings on questions of principle. Furthermore, in the shadow of the
Court, many petitions have been settled without a court ruling, allowing for a
full or partial remedy for the Palestinian petitioner.
The fiftieth anniversary of Israel's occupation of certain Arab-inhabited
territories following its victory in the June 1967 war is a good time to reflect
on the question of how international law addresses resistance to military
occupation. This issue—and its counterpart, the rights of an occupying
power vis-à-vis resistance—has arisen repeatedly in connection
with this occupation. It has been at the center of polemical debates involving
Israel, neighboring states, and the Palestine Liberation Organization, in a wide
range of international fora including the United Nations. It has also arisen in
numerous other conflicts in the past half-century, including in Namibia before
it achieved independence in 1990, and in Iraq following the 2003 U.S.-led
intervention. The legal focus of this contribution is on the jus in
bello. Certain jus ad bellum and human rights
issues raised by occupation and resistance that inevitably intrude at certain
points will be mentioned in passing.
A raft of legislative proposals introduced in the Knesset over the last several
years has raised the specter of Israeli annexation of additional West Bank
bill would provide for nearly automatic application of new Knesset
legislation to Israelis residing in the West Bank. A
second would authorize the expropriation under certain circumstances
of privately-owned Palestinian land for incorporation into Israeli settlements,
extending the Knesset's reach to the regulation of West Bank land use by
non-Israelis. A third, entitled the “Maale Adumim
Annexation Law,” provides for the full application of Israeli
law in Israel's largest West Bank settlement, as well as in an adjacent
twelve square kilometer area called the “E1 Zone,” one of the few
remaining land reserves available for the development of Palestinian East
Interest in the criminal aspects of the Israeli settlement project in the West
Bank is hardly new; it informed the drafting of Additional Protocol I (AP I) and
of the Statute of
the International Criminal Court (ICC), and motivated Israel's
rejection of both instruments. The 2009 Palestinian attempt to establish ICCjurisdictionpromptedextensivescholarlydebate
on the preconditions for jurisdiction and on its territorial and temporal
aspects, as well as on specific admissibility questions, primarily gravity.
(Complementarity is not an issue with regard to the establishment of West Bank
settlements, since Israeli law and jurisprudence do not prohibit it, although
they regulate some aspects related thereto).
In the present essay I compare the 2016 judgment of the International Court of
Justice (ICJ) in Nuclear Arms
Race (Marshall Islands v. United Kingdom) with the Court's 1966
judgment in South West
Africa (Ethiopia v. South Africa; Liberia v. South Africa). A series
of similarities between the two judgments are obvious: They are two of the three
cases in the history of the Court in which the judges were equally split and the
President had to cast his tie-breaking vote.
The critique of the judgments has been exceptionally strong, in 2016 as in 1966.
The core of the critique, then as now, has practically been the same—the
Court retreats into an excessive formalism that protects great powers.
The International Court of Justice (ICJ)’s 2016 judgments on the three
cases Obligations concerning negotiations relating to cessation of the
nuclear arms race and to nuclear disarmament show the omnipresence
of the dichotomy between form and substance in the Court's case-law.
Commentators and several dissenting judges have stressed that the judgments
represent a landmark in the sense that the Court has radically
departed from the consideration of flexible standards in applying
procedural rules to the determination of the issue of identification of a legal
dispute. In other words, it made form prevail over substance.
My very first publication, admittedly written in a language that many AJIL
Unbound readers might be unable or unwilling to read, was an essay on the Treaty
on the Non-Proliferation of Nuclear Weapons (NPT) and its effects
vis-à-vis third parties. Already back then, I found it difficult to
justify how an international treaty could rubber-stamp such a highly uneven
state of affairs. The overt acknowledgement of the discrimination between
nuclear and nonnuclear states, the hypocrisy about “unofficial”
nuclear states, and the Article VI obligation for nuclear states to negotiate
effective measures of disarmament, largely ignored in the first twenty years of
the treaty, were all elements that contributed to my perception of unfairness,
if not blatant injustice. As a young researcher approaching international law
with the enthusiasm of the neophyte, however, this looked like a little anomaly
in an otherwise fair and equitable international legal order. It did not set off
warning bells about the system as such. After all, international law was geared,
at least in my eyes, towards enhancing the wellbeing of humanity. It must have
been so. And it is not that I leaned particularly on the idealistic side; it
seemed normal to me … at the time.
Although caution must be exercised in attributing a policy to the International
Court of Justice, it is difficult not to see the Marshall
Islands judgments as part of a longer trend of the Court using
formalistic reasoning to decline cases concerning nuclear weapons.
The International Court of Justice (ICJ) has mostly emphasized substance over
form and developed a pragmatic, flexible, objective, and fact-based analytical
approach to jurisdiction. That is until a recent series of judgments veering
towards jurisdictional formalism. However, to truly reflect its designation as
the “World” Court, the UN's principal judicial organ must
surely adjudicate some of the “big cases” with global security
implications and involving important obligations erga omnes
beyond strictly bilateral dynamics: the Marshall Islands cases
were as good contenders as any for the Court to enhance its legitimacy
capital.1 As a
corollary, accepting this role might entail that the Court interpret its
jurisdiction in a flexible and progressive manner, which had always been its
mantra up until recently, so that the “big cases” have a chance of
getting their foot in the door and being litigated.