In association with the International Commission of Jurists

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09 Oct

[Jean d’Aspremont is Associate Professor of International Law, Amsterdam Centre for International Law (ACIL), University of Amsterdam and Editor-in-chief of the Leiden Journal of International Law] This post is part of the Leiden Journal of International Law Vol 25-3 symposium. Other posts in this series can be found in the related posts below.
Debate has always been a central medium of thought-making and, hence, knowledge-production in social sciences. This is why, albeit aware of the pitfalls of such platforms (see my EJIL:Talk! post), I initiated, with the help of Dov Jacobs, a partnership between the Leiden Journal of International Law and Opinio Juris. It is the very same rationale that propelled the observations on the wording techniques in international law that are under discussion today. Nourishing – predominantly self-reflective – debates was indeed the avowed goal of this piece to which Francesco Messineo and Michael Kearney reacted, thereby further contributing to the deliberative agenda behind it. I am thus extremely grateful to them for taking some of their very precious summer time (probably the moment of the year the most conducive to reading and thinking). I am similarly very appreciative of the fact that both authors took pains to venture into (and play with) some of the wording techniques described in this editorial, doing so with great mastery and uncontested brio. Although deeply thankful for their effort, I bemoan the extent to which Francesco and Michael, under the – conventionally necessary – veil of disagreement, fundamentally concur with the core ideas defended in the paper. Indeed, there neither of them seem to completely deny the competitive dynamics at play in the epistemic community of international law as well as the cosmetic, eye-catching, erudition-magnifying techniques which are deployed by the members of that community in their attempts to ensure that the information they produced is received and validated as proper knowledge by their peers. This being said, the readers of this blog ought not be anxious. Voicing disagreement is congenital to expert blogging and there is amble material to bicker about. Allow me to – completely arbitrarily and out of personal convenience – pick those points I deem the most fundamental and which I – very selfishly – would enjoy elaborating on (after all, legal blogging is a structurally and emotionally selfish exercise).
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09 Oct

[Michael Kearney is a lecturer in law at the University of Sussex] Many thanks to the organisers at LJIL and Opinio Juris for the opportunity to comment on Jean’s article on Wording in International Law. At the core of the paper is a plea that international legal scholars be alert to a tendency in contemporary scholarly production whereby the desire of authors...

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09 Oct

[Francesco Messineo is a Lecturer in Law, Kent Law School, Canterbury (UK).]  This post is part of the Leiden Journal of International Law Vol 25-3 symposium. Other posts in this series can be found in the related posts below.
Unless international lawyers get their act together and agree on the basic meaning of the key terms in their discipline, says Jean d’Aspremont, observers (and, crucially, funders) may suddenly realize that the profession is really no more than an ‘expensive debating club’ – often funded by the taxpayer – ‘in which everyone talks past each other’. Thanks also to blogs such as Opinio Juris, access to the debating chamber is no longer subject to hierarchical initiation rituals: anyone with a higher degree in (international) law is at least ostensibly welcome to join in. The ensuing competition for credibility is rife, says d’Aspremont. An ever‑increasing mass of ‘young’ and often ‘arrogant’ scholars employ words as their tools in a ‘hen house’ of ‘violent’ conflict aimed at finding new ‘names’ for things which often already have perfectly usable ones. Because of the death of Aristotelian logic and other ‘foundational’ philosophies,  the main aim of the profession has become the establishing of one’s persuasiveness and authority at the expense of the nearest colleague, often in pursuit of one’s ‘unquenchable thirst for recognition’. In order to perpetuate the illusion of a fruitful debate, the meaning of words must constantly change – there is no ‘epistemic peace’, as d’Aspremont puts it. Forget great systems of conceptual beauty collectively built by cohesive schools of thought: we want tenure, and possibly glory, too. In d’Aspremont’s view, international legal academia has become an endless game where the angst of oblivion often trumps logic and courtesy. Furthermore, this constant renaming of the institutions of international law is fashionable but pointless. As in the Leopard, everything must change constantly so that nothing actually changes. The preceding paragraph is meant to be an example of what d’Aspremont chastises. I have deliberately simplified and exaggerated his argument. I have taken his words out of context and reduced an eloquent set of arguments to what may be perceived as a rant (which his article is not). To make things worse, I have then added a perfectly unnecessary reference to a work of literary fiction which may be obscure to some of my readers, dropping it there as if everyone should know what the Leopard is (D’Aspremont would diagnose this somewhere in the spectrum between a pointless display of ‘erudition’ and a ‘strategy’ of mild ‘intimidation’). After having created this aesthetically and rhetorically pleasing straw-man, I should now proceed to mercilessly criticise his argument – a short critique is, after all, what the kind editors of LJIL and Opinio Juris asked me to write. 
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09 Oct

[Dov Jacobs is the Senior Editor for Expert Blogging at the Leiden Journal of International Law and Assistant Professor of International Law at Leiden University] This post is part of the Leiden Journal of International Law Vol 25-3 symposium. Other posts in this series can be found in the related posts below. Over the next few days, we are happy to bring you...

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09 Oct

Libya will challenge the jurisdiction of the International Criminal Court over Saif al-Islam Gaddafi in order to try him on Libyan soil. Mark Kersten at Justice in Conflict has more analysis about the battle of where the trial will be held. Police in Sierra Leone have arrested an investigator employed by former Liberian President Charles Taylor's defense team on charges he attempted...

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08 Oct

In his latest Slate article,  Professor Eric Posner highlights (for non-specialist readers) the  questionable international legal foundation of the Obama Administration's "drone war on terror" in Pakistan, Yemen, and elsewhere (e.g. Libya). The whole idea that the U.S. can infer Pakistan's consent to the strikes due to Pakistan's refusal to object to CIA faxes is not terribly persuasive.  I am...

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08 Oct

Islamic groups Hamas and Islamic Jihad fired rockets into Israel in retaliation for yesterday's Israeli strikes in the Gaza strip. Amnesty International has reported that Rwandan military intelligence services have engaged in torture, unlawful detention and enforced disappearances of civilians. Sudanese state media reports that the border between Sudan and South Sudan will reopen today, after a security agreement was reached last month. Turkish forces fired across the border...

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06 Oct

This week, there was no escaping the second oral argument in the Kiobel case that kicked off the US Supreme Court's term on Monday. If you are not familiar with this case, it concerns the enigmatic Alien Tort Statute which, as part of the Judiciary Act 1789, holds that "the district courts shall have original jurisdiction of any civil action...

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05 Oct

Over at Lawfare, I've flagged a fine new article in the Military Law Review, "The Case of the Murdering Wives: Reid v. Covert and the Complicated Question of Civilians and Courts-Martial," by Captain Brittany Warren (Vol. 212. 2012, p. 133; link goes to jagcnet.army.mil.) The article goes into fascinating detail about the actual facts and circumstances of Reid v. Covert, as well as a discussion of historical practices dating back to 17th century Britain and the application of the Articles of War to "camp followers."  It then comes back to the present to discuss the circumstances of civilians in courts-martial in US law. Let me add a comment that goes far afield of Captain Warren's article, but one raised in my mind by the detailed discussion she offers of the "murdering wives case" in its own context and time.  (I don't want to suggest that my discussion reflects her views in that article, so I've decided to make it a separate post here at OJ.)   Reid v. Covert is a case sometimes raised in a different context - one for which it is not really dead-on, however, though sometimes referenced in relation to it.  Reid is the question of the extraterritorial application of the US Constitution, and whether a civilian US citizen lawfully present on a US military base in time of peace, with a SOFA in operation (ie, 1950s Germany), is entitled to a regular US civilian trial with all Constitutional protections in a capital murder case rather than trial in military court under the UCMJ - answer, yes. But, if that's Reid, what about a US citizen who has fled the US to places not controlled in law or fact by the US, and is engaged in violent operations against the US from abroad as part of a terrorist group - is that US citizen nonetheless entitled to trial in a regular civilian court, or at least some form of judicial due process, and at least an implication that this US citizen can't be lethally targeted in the way that a non-citizen lawful target could be?
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05 Oct

I wanted to flag for readers one more international law related Federalist Society Teleforum, which will be starting shortly. On the call, which starts at 1 p.m. Eastern at  888-752-3232,  Professor Jeremy Rabkin of George Mason University School of Law and Paul Rosenzweig will discuss the U.S. State Department Legal Advisor Harold Koh's recent address on cyberwarfare.  Please feel free to call...

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05 Oct

Russia is considering offering Western companies oil licenses in its Arctic waters. Reuters has an exclusive that the European Union is ready to ban imports of Iranian gas as a part of new sanctions in order to increase the pressure over the nuclear program in the Islamic Republic. A UN representative has told the Security Council there is little time to deal with rebels...

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04 Oct

Aryeh Neier, recently retired president of the Open Society Institute (and former head of Human Rights Watch and the ACLU), has an opinion piece in Project Ricochet this week calling for a no-fly zone over Syria. He calls for it to be imposed by a regional force and NATO.  The US would not lead the effort, though presumably it would...

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