Recent Posts

International Law Does Not Prohibit Commercial Asteroid Mining. Nor Should It.

by Julian Ku

Last week, the U.S. Congress passed the US Commercial Space Launch Competitiveness Act of 2015 (or the “Space Act”), which will authorize private U.S. companies to own and sell resources they extract from objects in space. Supporters (and detractors) are calling this historic, because it is the first time the U.S. government has plainly authorized commercial exploitation of outer space resources.  Here is some key language from the bill, which President Obama is expected to sign.

§ 51303. Asteroid resource and space resource rights

“A United States citizen engaged in commercial recovery of an asteroid resource or a space resource under this chapter shall be entitled to any asteroid resource or space resource obtained, including to possess, own, transport, use, and sell the asteroid resource or space resource obtained in accordance with applicable law, including the international obligations of the United States.”.

This provision has been criticized as violating U.S. obligations under the Outer Space Treaty of 1967.  Chief among those obligations is Article I of that treaty:

The exploration and use of outer space, including the moon and other celestial bodies, shall be carried out for the benefit and in the interests of all countries, irrespective of their degree of economic or scientific development, and shall be the province of all mankind.

There is also Article II, which seems to restrict claims of sovereignty in outer space.

Outer space, including the moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.
The Space Act of 2015 tries to avoid this potential conflict by limiting itself to authorizing private citizen (as opposed to “national”) exploitation, and subjecting that exploitation to “international obligations of the United States.”  The Act also goes on to “disclaim” extraterritorial sovereignty (shouldn’t that be “extraterrestrial” by the way?)

It is the sense of Congress that by the enactment of this Act, the United States does not thereby assert sovereignty or sovereign or exclusive rights or jurisdiction over, or the ownership of, any celestial body.

I think the law’s backers are correct that it does not violate US treaty obligations. All it does is allow private US citizens to “possess, own, transport, use, and sell” extraterrestrial resources without violating U.S. law.

On the other hand, it is also true that other spacefaring countries could allow their citizens to do the same.  Indeed, I think their government space agencies could probably also do so, als long as they are not “claiming sovereignty.”  Without an explicit international treaty regulating commercial space resource exploitation, it will ultimately be a question of each country’s domestic regulations.   Can the U.S. live with that result?

I think it can.  In my view, the UN Law of the Sea created a complicated bureaucracy for handling management of the international seabed, way before any commercial exploitation of that seabed was even possible.  We don’t know yet what types of exploitation are feasible, and we might as well let this process evolve on its own before demanding a worldwide international treaty on the subject.  There will be plenty of time for that.

A Fascinating Interview with Duncan Kennedy

by Kevin Jon Heller

Duncan, unlike David, is not primarily an international law scholar. But Kennedy’s work on critical legal studies has had a profound influence on most left-wing international law scholars — including me. So I wanted to post a link to a fascinating and wonderfully substantive interview with him conducted by Tor Krever, Carl Lisberger, and Max Utzschneider. I had no idea Kennedy worked for the CIA for two years before going to law school!

I spent two years at the CIA. The first I spent in the field, an agent of student politics, traveling all over the world. I was the overseas representative of the National Student Association. We organised conferences, produced manifestos, in alliance with the Western European student unions, and aided and cooperated with student organisations from developing countries in an effort to build a Western-oriented politics of a moderately left variety. The US organisation criticised the US government a lot, to establish credibility but also because the leaders believed the criticism. We also gathered information that went back to Washington about student politics, which was a side effect for some but maybe the main justification for others. The second year I spent inside the Langley headquarters, working for the internal staff that supervised the front organisations, collating the intelligence they gathered, and so forth. The operation was exposed at the end of my second year working for the CIA. Not everyone in the front organisation was a CIA agent. It was divided between the witting and the unwitting, and that is how the cover was eventually blown: the boundary turned out to be somewhat porous, especially when more and more of us liberal cold warriors were deciding that we, the US government, were no longer the good guys, or even good at all. I started out thinking the CIA was a good way to get out of the draft, which made me a lot less of a true believer than most of my colleagues. But by the end of my experience there, I had started to be radicalised. It was all about the war, but as the war came to seem an atrocity, many other long-term bad aspects of our foreign policy began to look like part of the pattern rather than like aberrations.

The interview is well worth a read. You can find a PDF of it here.

Events and Announcements: November 8, 2015

by Jessica Dorsey

Call for Papers

  • The Rapoport Center Human Rights Working Paper Series (WPS) is happy to announce a call for papers for the 2015 – 2016 academic year. The WPS seeks innovative papers of the highest quality by both researches and practitioners in the field of human rights. Acceptance to the WPS series provides authors with an opportunity to receive feedback on works in progress and stimulate a lively, productive conversation around the subject matter of their paper. This process is designed to prepare papers for publication in academic journals or other venues. This year we are particularly interested in papers exploring the relationship between human rights and inequality, natural resources governance, and the future of labor. Please see the submission guidelines here and feel free to contact us at rcwps [at] law [dot] utexas [dot] edu with any inquiries. 


  • Oxford University Press and the Manchester International Law Centre (MILC) have been developing a database of annotated documents pertaining to the law of international organizations called ‘Oxford International Organizations’ (OXIO). They are now looking for rapporteurs who will be identifying relevant materials and providing short commentaries. Within a few years, OXIO is meant to become one of the largest databases of international law documents. The call for rapporteurs is available here. It is of the utmost importance that the pool of rapporteurs remains representative of the variety of practices in the field, the variety of geographical traditions, as well as the variety of international organizations.


Our previous events and announcements post can be found here. If you would like to post an announcement on Opinio Juris, please contact us with a one-paragraph description of your announcement along with hyperlinks to more information.

Remembering Professor Burns Weston

by Duncan Hollis

Professor Burns Weston passed away on October 28, 2015.  His daughter, Rebecca Weston, wrote the following obituary, which she passed on to us to circulate among the international law community.  I never had the privilege of meeting Professor Weston, but was a regular user of his textbooks (on both international law and international environmental law).  I know I speak for all of us here at Opinio Juris when we offer our condolences to Rebecca, her family, Burns’ former students, as well as all his friends and colleagues.

Burns H. Weston, Bessie Dutton Murray Distinguished Professor of Law Emeritus at the University of Iowa and founder and senior scholar of the University of Iowa Center for Human Rights (UICHR) died on October 28, 2015, just a few days before his 82nd birthday.  After surviving numerous intense challenges to his health, Weston’s death was unexpected and sudden.  To the end, he was excited about upcoming birthday celebrations with his wife and visits to his children over Thanksgiving; he was steadily writing and developing new projects.

Weston was fond of quoting EB White, who said:  “If the world were merely seductive, that would be easy.  If it were merely challenging, that would be no problem.  But I arise in the morning torn between a desire to improve the world and a desire to enjoy the world.  This makes it hard to plan my day.”

In his own life, Weston also felt the pull of these choices every day – including in his first pivotal career decision to discontinue a promising career as a pianist or conductor to focus on the then relatively new field of international law.

As loved ones, friends and colleagues from around the world witnessed, Weston had a limitless capacity to enjoy so much about this world – and an equally tenacious drive to improve it.

After receiving his J.D. from Yale Law School, Weston began his legal career in 1961 with the distinguished New York City law firm of Paul, Weiss, Rifkand, Wharton & Garrison.  Wanting to teach, he subsequently joined The University of Iowa College of Law, where he remained for the rest of his professional life.  He devoted himself to the cause of international law, human rights and environmental sustainability.

As his close friend and colleague, Richard Falk said, Weston was one of “the most talented and dedicated international law scholar[s] of his generation.”  Weston authored over 28 books, innumerable articles, and was on the editorial board of over 10 professional journals, including the American Journal of International Law.  Among others, he published in the Harvard International Law Journal, Human Rights Quarterly, and the Journal of Human Rights and the Environment.

Over the years, Weston participated in fact finding missions, lectured, wrote and taught about some of the most pressing issues facing our planet: nuclear weapons and disarmament, child labor, human rights and in the latter part of his life, environmental survival.  And in doing this work, Weston was often bold and inventive.  As close collaborator David Bollier wrote, he was an “irresistible disruption” – a force of such optimism, conviction and potential – that he emboldened and challenged those around him.

At the University of Iowa, Weston inspired generations of law students and “put Iowa Law on the map” of international law and international human rights. He developed a path-breaking, problem-oriented approach to teaching international law and wrote the award-winning textbook, International Law and World Order: A Problem-Oriented Coursebook.   Always broad and expansive in his thinking, Weston also founded and directed an interdisciplinary, university-wide Center for World Order Studies (later known as the University’s “Global Studies Program”) in the 1970s.

At the same time, Weston was a dedicated teacher who paid close attention to and nurtured his students.  As one student wrote, he “will always be the internationally-renowned scholar, writer, and teacher who was also generous enough to write two e-mails to a very desperate law student when she needed it most.  And there’s not a lot of those out there.”

Prior to the end of the Cold War and the collapse of the Soviet Union, Weston took part in a human rights fact-finding mission to Havana Cuba in 1984, a protective conflict-mitigation mission in 1985 to accompany former political dissident (and later president) Kim Dae Jung upon his return to Korea following involuntary exile in the United States; and in 1987, a human rights fact-finding mission in the Israeli-Occupied Territories of the West Bank and Gaza.

Later, Weston (usually with his wife Dr. Marta Cullberg Weston), organized and/or participated in a number of human rights fact-finding and conflict-mitigation missions in the former Yugoslavia, Central Asia, and beyond.

In the latter part of his career, Weston founded the University of Iowa Center for Human Rights (UIHCR) and turned his scholarly attention to issues of the environment.  He immersed himself in the politics and the social dynamics of ecological crisis and climate change.  In 2012, Weston authored the International Environmental Law and World Order: A Problem-Oriented Casebook. 

Subsequently, in 2013, Weston co-authored a ground-breaking book titled Green Governance: Ecological Survivial, Human Rights, and the Law of the Commons.   As co-author David Bollier has written about their collaboration on the Commons Law Project, Weston “attacked these questions with the enthusiasm of a first-year law student and the sagacity of a gray eminence. […] He wasn’t afraid if they might require social and political struggle.”

At the time of his death, he was in the final stages of completing the 4th edition of Human Rights in the World Community: Issues and Action, with co-author, Anna Grear.

In his non-academic, non-activist life, Weston embraced the world “with all five senses.”  Above all, he was passionate about and constantly immersed in classical music:  friends and family can easily recall moments when Weston’s attention drifted into a musical score; they remember often urging him to lower the volume just enough to hear themselves talk in the car or over a dinner table conversation.

He also loved art, taking drives and going to movies.  He had a strong sense of aesthetics and a gifted ability to create beautiful spaces. In no place were Weston’s senses more alive or more soothed then in his beloved Adirondack Mountains.  Until the end, Weston was a devoted spouse, father and grandfather: he was consistently and steadily available, curious about and eager to support and connect with his children and grandchildren.

Weston is survived by his wife, Marta Cullberg-Weston (Sweden) and his two children, Timothy Bergmann Weston (Boulder) and Rebecca Burns Weston (Montana), four grandchildren (Leah and Emma Yonemoto-Weston, Elijah and Isabella Weston-Capulong) and three stepchildren, Malin Cullberg, Johannes Cullberg, and Martin Cullberg and five step grand-children John Birger Wedinger, Olivia Lampenius Cullberg, Sima Wiernik Cullberg, Joar Wiernik Cullberg, and Cecilia Lampenius Cullberg.

A memorial service in honor of Weston will be held at the University of Iowa College of Law on December 5, 2015, from 2:00 p.m. – 5:00 p.m.  Donations in Weston’s honor will be accepted at the Iowa Law School Foundation for the benefit of the University of Iowa Center for Human Rights, 130 Byington Road, Iowa City, Iowa 52242

When Is a “Plain Meaning” Not Plain?

by Kevin Jon Heller

In my post on biological and chemical weapons yesterday, I rejected the idea that Art. 8(2)(b)(xviii) “squarely appl[ies]” (Ralf Trapp) or “plainly applies” (Alex Whiting) to chemical and biological weapons by arguing that the drafters of the Rome Statute intended Art. 8(2)(b)(xviii), the war crime of “[e]mploying asphyxiating, poisonous or other gases,” to have precisely the kind of “special meaning” that Art. 31(4) of the VCLT requires us to take into account when interpreting that provision.

After the post went up, Alex and I had a heated but typically friendly exchange on Twitter concerning “plain meaning” treaty interpretation. Interested readers can start with this tweet. Our debate did not focus on the applicability of Art. 31(4) of the VCLT. Instead, we argued about whether simply reading the text of Art. 8(2)(b)(xviii) makes it plain that it criminalises chemical and biological weapons. Alex thinks it’s evident that it does; not surprisingly, I disagree.

The problem with the debate is both obvious and timeless: if two people disagree about the correct interpretation of a text, how do they determine whose interpretation is correct? Alex rightly rightly pointed out that we should not reject a particular “plain meaning” simply because one person disagrees with it; any such standard would deny the possibility of plain meaning altogether. (Which, to be clear, I’d be happy to do on other grounds, because I follow the neo-pragmatic approach to interpretation associated with Stanley Fish. See, for example, this fantastic essay.)

But if one person’s disagreement cannot render a “plain meaning” not plain, how many people is enough? Five? 10? 100? At some point disagreement over the meaning of a text has to negate the possibility of any particular interpretation being considered “plain.” Alex and I went around and around on this, and he finally advocated what is essentially a procedural solution to the problem: the “plain meaning” of Art. 8(2)(b)(xviii) is whatever the ICC’s judges ultimately say it is.

As a descriptive matter, Alex is absolutely correct. But unless we believe the ICC’s judges are legally infalliable — and I certainly don’t! — we have to accept the possibility that they could be wrong about the “plain meaning” of Art. 8(2)(b)(xviii). So we are right back where we started: trying to determine how much disagreement over the interpretation of a text has to exist before we conclude the text has no plain meaning.

I have no easy answer. But I would still maintain that it strains credulity to believe that the “plain meaning” of Art. 8(2)(b)(xviii) indicates that it criminalises chemical and biological weapons. To see why, we don’t even have to return (as I think we should) to the drafting history of Art. 8. It is sufficient to note that a significant number of states still believe that Art. 8(2)(b)(xviii) does not criminalise chemical or biological weapons. How do we know that? Because 14 states formally proposed amending Art. 8 to criminalise those weapons at the ICC’s Review Conference in 2010: Argentina, Belgium, Bolivia, Burundi, Cambodia, Cyprus, Ireland, Latvia, Luxembourg, Mauritius, Mexico, Romania, Samoa and Slovenia. Here, in relevant part, are the provisions the 14 states wanted to add to Art. 8(2)(b):

xxvii) Using the agents, toxins, weapons, equipment and means of delivery as defined by and in violation of the Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction, London, Moscow and Washington, 10 April 1972.

xxviii) Using chemical weapons or engaging in any military preparations to use chemical weapons as defined by and in violation of the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction, Paris, 13 January 1992.

These proposed amendments make no sense if the “plain meaning” of Art. 8(2)(b)(xviii) already criminalises chemical and biological weapons. So how can that interpretation be considered the “plain meaning,” given that at least 11% of the States Parties to the Rome Statute do not understand Art. 8(2)(b)(xviii) in the supposedly plain manner? Surely such disagreement indicates that there is no “plain meaning” of the war crime.

Does that mean the 14 states are right? Of course not. Perhaps Art. 8(2)(b)(xviii) really does criminalise chemical and biological weapons. All I’m saying is that we cannot reach that conclusion by looking to Art. 8(2)(b)(xviii)’s “plain meaning.” The meaning of the war crime is at best ambiguous or obscure.

But that, of course, is a critical realisation. Because it means that we have to look to the drafting history of the Rome Statute to determine the correct interpretation of Art. 8(2)(b)(xviii) even if we accept a plain-meaning approach to treaty interpretation. (Which we should not.) Here is Art. 32 of the VCLT:

Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31:

(a) Leaves the meaning ambiguous or obscure.

Even though my understanding of the VCLT accords with Julian Davis Mortenson’s, I am willing to entertain the idea that the meaning of some provisions of the Rome Statute is so plain that we have no practical need to examine their drafting history. Art. 8(2)(b)(xviii), however, is not such a provision. Given the widespread disagreement among states concerning whether the war crime criminalises chemical and biological weapons, the best interpretation of Art. 8(2)(b)(xviii) is that it has no plain meaning.

Can You Be Pro-Free Trade and Anti-Investor State Dispute Settlement?

by Julian Ku

Simon Lester of and the Cato Institute offered a very interesting pro-free trade argument against the inclusion of investor-state dispute settlement (ISDS) in trade agreements like the TransPacific Partnership or the Transatlantic Trade and Investment Partnership.  I disagree and we discussed and debated the issue today in a lively conversation hosted by Columbia University’s Center for Sustainable Investment.

The Rome Statute Does Not Criminalise Chemical and Biological Weapons

by Kevin Jon Heller

Over the past week, two posts at Just Security have argued that the ICC can prosecute the use of chemical and biological weapons as a war crime, even though they — unlike other types of weapons — are not mentioned in Article 8 of the Rome Statute. The first post was written by Ralf Trapp, who argued as follows:

Furthermore, there are the provisions of the Rome Statute of the International Criminal Court (ICC). Even though it does not use the terminology of the CWC (“chemical weapons”), there is no doubt that the terms “employing poison or poisoned weapons” and “employing asphyxiating, poisonous or other gases, and all analogous liquid, materials or devices” found in the list of war crimes under the statute’s Article 8 would squarely apply to the use of chlorine or mustard gas as a weapon of war. Any such use would consequently come under the jurisdiction of the ICC.

Trapp does not even acknowledge any other interpretation of Article 8. By contrast, the second post, written by Alex Whiting, admits that a different interpretation is possible. But Whiting nevertheless sides with Trapp, citing an earlier post by Dapo Akande at EJIL: Talk!:

The Rome Statute originally included a direct ban on chemical and biological weapons, but it was dropped at the same time as a ban on weapons causing unnecessary suffering was narrowed to apply only to those weapons listed in an annex (which does not exist because the States Parties never adopted one). This narrowing was done to avoid having the broader provision apply to nuclear weapons. The direct chemical and biological weapons prohibition was then dropped, apparently because some negotiators thought that there should be parity in approach to nuclear weapons (possessed by wealthy nations) and chemical and biological weapons (the more likely option for poorer countries). The claim that that the Statute therefore does not cover chemical and biological weapons was reinforced by Belgium’s efforts at the ICC Review Conference in Kampala in 2010 to amend the Statute to include a ban on chemical and biological weapons, indicating that there was an understanding among at least some States Parties that the Statute as written did not already do so.

But Akande persuasively argues (reinforcing what Trapp intuits) that the language in the Statute prohibiting poisonous and asphyxiating gases and analogous liquids, materials, and devices plainly applies on its own terms to most — if not all — chemical and biological weapons. Since the treaty text is clearly written, there is no need to consider the history of its drafting, per the Vienna Convention on the Law of the Treaties. In this case, the difficulty with relying on the negotiation history in the first instance is that it is highly indeterminate: Assessing what 120 countries “intended” when they adopted the Rome Statute is nearly impossible, and therefore the plain language of the treaty should govern when it is clear, as it is here.

I disagree with Trapp and Whiting. I won’t rehash the arguments I made in response to Dapo’s post; interested readers can see our exchange in the EJIL: Talk! comments section. But I do want to flag three critical problems with the argument advanced by Trapp and Whiting: one factual, one theoretical, and one political.

The factual problem is that this is simply not a situation in which the drafting history is “highly indeterminate.” Few drafting disputes are as well known as the dispute over the criminalisation of nuclear weapons, chemical weapons, and biological weapons. And as Whiting’s own account makes clear, we know with absolute certainty that not enough states favoured criminalising the use of chemical and biological weapons — because the proposal to criminalise them failed. The reason why states opposed criminalising their use is irrelevant; I’m quite sure that some may have wanted to reserve the right to use them, while others were happy to criminalise their use but did not want to alienate the nuclear states. All that matters is that it is undisputed states tried and failed to criminalise the use of chemical and biological weapons.

It does not matter, then, whether “[a]ssessing what 120 countries ‘intended’ when they adopted the Rome Statute is nearly impossible.” What matters is whether we know how 120 states understood Art. 8 of the Rome Statute. And we do…

Why China Will Ignore the UNCLOS Tribunal Judgment, and (Probably) Get Away With It

by Julian Ku

U.S. commentary has largely celebrated the UNCLOS Arbitral Tribunal’s award finding it has jurisdiction to consider the merits on many of the Philippines’ South China Sea related claims against China.   Perhaps the most positive note is found in Jill Goldenziel’s essay at the Diplomat entitled, “International Law Is the Real Threat to China in the South China Sea.”

But just by getting this far, the case already has important implications for the use of international courts to manage and resolve international conflicts. International law has become a weapon of the weak. Countries that cannot afford or have no chance of winning military conflicts have increasingly turned to courts to resolve territorial, economic, and human rights claims. Other countries are closely watching the Philippines as they consider similar options for asserting their own rights in the South China Sea and beyond. Vietnam, in particular, is considering filing a similar lawsuit. At the very least, the case may force China to engage in talks with its neighbors to resolve competing claims to the South China Sea. By doing so, China can save face and claim to resolve the disputes on its own terms. If law can bring China to its knees, cases involving the South China Sea will have ripple effects far beyond its shores.

For my own part, I am much more skeptical about the benefits of an arbitral award for the Philippines. As I argued last year, there is little reason to think China will suffer serious reputational consequences for defying the UNCLOS Arbitral Tribunal’s award on jurisdiction or on the merits. Why?

Because other cases involving “weak” nations using international courts against “strong” nations shows that “strong” nations suffer few consequences and rarely change behavior significantly. The most similar case to Philippines v. China is probably the 1986 ICJ judgment in Nicaragua v. United States. That case (also brought by the Philippines’ current lawyer Paul Reichler) resulted in the U.S. withdrawing from the compulsory jurisdiction of the ICJ, not showing up for the merits argument, and ignoring the ICJ’s final judgment on the merits in that case. While the U.S. suffered some negative votes in the General Assembly and had to veto several Security Council resolutions, it is hard to argue that the U.S. “complied” with the ICJ judgment as a result of the reputational costs it suffered by walking away. The U.S. never paid the compensation the ICJ held that it owed, and it stopped mining Nicaraguan harbors only years later.

Russia has also recently demonstrated the ability of a “Strong” state to ignore an international court ruling. After detaining a Dutch-flagged Greenpeace vessel and its crew in 2013, Russia faced a provisional measures proceeding in the International Tribunal for the Law of the Sea. That tribunal ordered Russia to “promptly release” the vessel upon the posting of a bond and to release the crew as well.   Russia did not show up for the argument in court, and simply ignored the ITLOS order as well as a subsequent UNCLOS arbitral award.

Perhaps the Philippines will win some sort of leverage over China down the road by using a favorable award as a bargaining chip with China. But in the short-term, the Philippines has enraged China and has also led China to denounce (for the first time) the UNCLOS arbitral tribunal itself. It would not be impossible to imagine China announcing a withdrawal from UNCLOS (just to avoid the dispute settlement provisions) and simply adhering to UNCLOS as customary international law. That result will not be great for China, but I have a hard time seeing how it helps the Philippines either.

My Talk on the ICC’s Investigation into the Situation in Georgia

by Kevin Jon Heller


I’m in the middle of a week-long trip to Georgia, where I’m giving nine lectures in five days to the military and university students. (Thanks, Anna Dolidze, Deputy Minister of Defence and friend-of-OJ!) I’m talking about perfidy a couple of times, but most of the lectures — not surprisingly — are about the OTP’s request to open a formal investigation into the situation in Georgia. I’ve greatly enjoyed the lectures I’ve given so far, at Free University Tbilisi and at the Ministry of Defence. The questions have been uniformly intelligent and challenging. Today I’m heading to Gori to give lectures at the National Defence Academy.

In any case, a reader emailed me and asked whether I could send her the notes of my talk and the accompanying PowerPoint slides. I was happy to oblige, and I thought I might upload both to Opinio Juris, in case anyone else would like to see them. The notes are here, and the accompanying PowerPoint slides are here.

Weekly News Wrap: Monday, November 2, 2015

by Jessica Dorsey

Your weekly selection of international law and international relations headlines from around the world:


Middle East and Northern Africa






Events and Announcements: November 2, 2015

by Jessica Dorsey


  • International Organisations and the Rule of Law: Perils and Promise, Victoria University of Wellington Faculty of Law, New Zealand, 7-8 December 2015. This symposium will take a fresh look at the resources that international law possesses to ensure that international organisations (IOs) are held accountable for their errors and excesses, while remaining relevant and effective in the face of ever growing global challenges. How can international law develop in a way that preserves and enhances the dynamic possibilities of IOs while making sure that they comply with the rule of law? Can the rule of law offer solutions, or is it part of the problem? The programme and registration form for the symposium are now available here.


  • The Global Rule of Law Exchange will be streaming a live web cast on 5 Thursday November, 2015 (from 14.00 BST).This web cast is one of the dissemination activities of the ‘research to practice’ project. The panellists (Georgia Harley from the World Bank; Nicole Stremlau from the University of Oxford; Brian Lucas from GSDRC; Justin Haccius from the UK Department for International Development; and Ajoy Datta from the Overseas Development Institute will discuss challenges and share experience with converting research into policy. They will also aim to share tips to help researchers better articulate their findings to a policy audience. A chat box will be available to post your comments or questions. For those who cannot stream the event live, the organizers expect video playback of the event will be available on our website. More information on the event, including instructions for registration can be found online.
  • Reminder: On November 5th, at 3.30:  Growing Competition Among International Courts and Tribunals, a panel organized by LPICT and the NYC bar. Speakers include Prof. Chester Brown (University of Sidney), Prof. Mathias Forteau (University of Paris Ouest-Nanterre), Prof. Makane Mbengue (University of Geneva), Mr. Eduardo Valencia-Ospina Editor-in-Chief of The Law and Practice of International Courts and Tribunals), Prof. August Reinisch (University of Vienna), Prof. Attila Tanzi (University of Bologna) and Dr. Catherine Tinker (Seton Hall University, Chair of the European Affairs Committee of the NYC Bar Association). More information here. The event is free, but you need to register.
  • Reminder: November 5-7, 2015 | New York City – International Law Weekend 2015 Global Problems, Legal Solutions: Challenges for Contemporary International Lawyers. The conference will offer engaging panels on current problems and innovative solutions in both public and private international law. ILW begins Thursday evening, November 5, with a distinguished opening panel at the New York City Bar (42 W. 44th Street, New York, NY). A reception will follow and is open to all conference attendees. The conference continues Friday, November 6 and Saturday, November 7 at Fordham University School of Law (150 West 62nd Street, New York, NY). Friday’s activities feature a keynote address from Miguel de Serpa Soares, United Nations Under-Secretary-General for Legal Affairs and United Nations Legal Counsel. The event is organized by The American Branch of the International Law Association (ABILA) and the International Law Students Association (ILSA).
  • On Tuesday, November 17th from 6:00 to 7:30 p.m., the Benjamin N. Cardozo School of Law  will host a Book Launch of Reconstructing Atrocity Prevention, edited by Sheri P. Rosenberg, Tibi Galis, and Alex Zucker. Please RSVP by November 3rd to info [at] auschwitzinstitute [dot] org.
  • The Benjamin N. Cardozo School of Law will host “Three Presidents: Former Israeli Chief Justices in Conversation,” at 7:00 p.m. on November 9th. Please RSVP to saphir [at] yu [dot] edu (with “RSVP” noted in the subject line). For more information, visit The Israeli Supreme Court’s website, Versa.

Our previous events and announcements post can be found here. If you would like to post an announcement on Opinio Juris, please contact us with a one-paragraph description of your announcement along with hyperlinks to more information.

Academic BDS and Individual Israeli Scholars

by Kevin Jon Heller

Guardianadvert4palestine-FINALv2-page-001I’ve received a few emails over the past couple of days wondering why I have not joined the now 500 scholars at UK universities who have pledged to boycott Israeli universities. The answer is that although I wholeheartedly support BDS in its economic and cultural forms, I am much more ambivalent about academic BDS. I agree with the boycotters that Israeli universities are deeply complicit in Israel’s systematic oppression of Palestinians. I’m fully aware that the too many Israeli academics either support that oppression or at least generally remain silent about it. And I know that most people who criticise academic BDS on “academic freedom” grounds could not care less about the academic freedom of Palestinians. But I simply cannot get past my belief that the boycott, at least as it is currently structured, is unfair to the (unfortunately small) number of Israeli academics who are brave enough to speak out against Israel’s policies.

To be sure, those who support the boycott insist that it targets Israeli universities, not individual Israeli scholars. The statement by the UK academics, for example, says that they will “continue to work with our Israeli colleagues in their individual capacities.” Similarly, the PACBI Guidelines for the International Academic Boycott of Israel provide that “[m]ere affiliation of Israeli scholars to an Israeli academic institution is… not grounds for applying the boycott” and clearly notes that Israeli academics can use their individual research budgets “in support of academic activities, such as attendance of international conferences and other academic events,” as long as they do not have to acknowledge that their funding comes from an Israeli institution.

I’m glad that the UK academics and PACBI are sensitive to the distinction between Israeli universities and Israeli scholars. But I still think the PACBI guidelines (which the UK statement endorses) harm Israeli scholars, including those that are critical of Israel, to an extent that makes it impossible for me to endorse academic BDS. Here, in relevant part, is what Guideline 10 prohibits (emphasis in original):

10. Serving as external reviewers for dissertations, writing recommendations or other forms of refereeing such as advising on hiring, promotion, tenure, and grant-making decisions at Israeli universities. International academics who choose to review the academic work of faculty or students at Israeli universities on a personal basis are not conflicting with the boycott guidelines, so long as their names are not used by those universities in any way (to gain legitimacy). Accepting to be on a dissertation, referee or review committee appointed by or serving an Israeli university, however, directly conflicts with the institutional boycott of these universities, as it legitimates Israel’s academic standing around the world. The boycott also applies to writing tenure or promotion recommendations addressed to university administrators.

I fail to see how  these restrictions target Israeli academic institutions, not individual Israeli scholars. If a left-wing Israeli scholar is already a full professor, academic BDS will not have a profound impact on her career. But any scholar is who is more junior is directly harmed by Guideline 10. If I supported academic BDS, I could not co-supervise a PhD student at an Israeli university or serve as her external examiner. Once she obtained her PhD, I could not help her get a job at an Israeli university. And after she became a lecturer, I could not write a letter on her behalf advocating her promotion or tenure.

These restrictions could easily be fatal to the career of a left-wing Israeli scholar — especially a more junior one. Given Israel’s increasing suppression of even the most tepid criticism of its policies, including (yes) by University administrations, it is unlikely that such a scholar will find many senior Israeli academics willing to supervise her dissertation, help her get a job in the Israeli academy, or support her promotion and tenure. And Guideline 10 prohibits non-Israeli scholars from providing her with that support. So the young Israeli scholar will end up facing a difficult choice: either find a PhD program or academic position overseas — which she may not be able to do, whether for family/financial reasons or because she wants to fight for change from within Israel — or abandon an academic career.

That’s troubling enough, but the systemic effects of academic BDS on the presence of left scholars in the Israeli academy are even more troubling. Academic BDS obviously has no effect on young right-wing scholars, who already outnumber their left-wing counterparts. Young right-wing scholars will have no problem finding more senior Israeli and non-Israeli scholars to supervise their dissertations, help them get jobs, and support their promotion and tenure. So academic BDS will simply ensure that, over time, then, left-wing scholars become more scarce in Israeli universities while right-wing scholars become ever more common.

Perhaps that’s okay. Perhaps the need to pressure Israel to change its policies is worth preventing left-wing Israelis from pursuing academic careers and ensuring that the Israeli academy becomes even more right-wing than it already is. If so supporters of academic BDS should say so openly, instead of claiming that the boycott doesn’t affect individual Israeli scholars. It does — which is why I can’t support it.