23 Dec The 10 Most Read Posts of 2022
Believe it or not, 2022 is ending. It has been a busy year for Opinio Juris. Our team has grown, incorporating Vivek Bhat and Sarah Zarmsky, as Contributing Editor and Deputy Managing Editor, respectively. We have also organised symposia on difficult subjects that make us think about our profession in often ignored ways; how classism, systemic racism, and the challenges of the academic profession shape the content we produce. As we approach the 5th anniversary of the launching of Opinio Juris 2.0, this is perhaps what makes me most proud – that we are encouraging a meta-conversation within our community about itself.
At the same time, 2022 has been a tumultuous year for international law, marked by the COVID-19 Pandemic, the war in Ukraine and the passing of Judge Cançado Trindade. In the spirit of the new year, I thought I’d offer our readers a snapshot of what the year has been like at Opinio Juris, by listing the Top 10 most read articles of 2022.
In this post Julia Emtseva and Paul Emtsev explore the emergence of a previously declassified document in the British Archives, seemingly showing that Western states did offer verbal assurances that NATO would not expand eastwards. They conclude that these promises are not relevant from a legal perspective, but that “the political and diplomatic consequences of such erroneous political communication by the West remain to be seen”, concluding that evidence of a so-called “dishonest West” might “fit perfectly into Russia’s narrative”.
Before being Opinio Juris’ newest permanent member, Vivek Bhatt was a frequent guest contributor, with interesting and innovative takes (there’s a reason why we were so happy to bring him on board!). In this, his fourth post for Opinio Juris, Vivek explored the cultural value of food in relation to the human rights duties of states, taking particular concern with the homogenisation and massification of (food) culture through products like instant noodles. “It is unlikely that this obligation could justify the limitation of a corporation’s capacity to market consumer products like instant noodles”, Vivek says, “[b]ut the success of such products symbolises the threat that globalisation poses to cuisine as an expression of, and means for the development of, culture”.
As one of the founders of the “international legal blog boom” of the early 2000s, it is no surprise that Kevin is one of the two authors with two entries in this Top-10. Kevin spent a big chunk of 2022 discussing accountability mechanisms for Russian atrocities in Ukraine. In this post, Kevin engages with Tom Dannenbaum’s arguments over at Just Security, where he proposed four possible solutions for accountability in Ukraine: The ICC, an ad hoc tribunal, a domestic court with territorial jurisdiction or a domestic court with universal jurisdiction. Kevin adds to this list a fifth option: “a hybrid tribunal established as part of the Ukrainian judicial system with the support of the Council of Europe”.
Srinivas Burra, Barrie Sander, Ntina Tzouvala and Julia Emtseva’s symposium on early career in international law academia was massive and generated much needed conversations about difficult topics – from how to deal with methodology to what it means to be a “foreign” academic. It was an amazing two weeks, in partnership with our good friends at Afronomics, and so I am not surprised that the introduction made this list. This is also Julia Emtseva’s second post in the list – the only one, alongside Kevin Jon Heller, to have two posts in the Top-10.
This post, written on February 4th, twenty days before the Russian invasion of Ukraine, was an incredibly timely word of caution on the importance of the crime of aggression in international law and politics. The post offered four recommendations on how to strengthen its potential for deterrence: (a) the ICC Prosecutor should investigate and prosecute the crime when an appropriate situation arises in which the ICC has jurisdiction; (b) the Prosecutor should highlight the visibility of the crime by writing policy papers; (c) more countries should ratify and implement the aggression amendment; and (d) consider whether the “manifest” qualifier must be removed from the definition of aggression.
One of the big debates this year was whether it was a good idea to create a tribunal for the crime of aggression in Ukraine, in light of Russia’s unlawful invasion. As you will see below, Opinio Juris’ own Kevin Heller strongly cautioned against it. In this post, Dr. McDougall responds to his post. She argues that, in light of the ICC’s lack of jurisdiction, domestic tribunals would lack sufficient legitimacy and powers to prosecute Russian aggression and that an ad hoc tribunal is the best alternative. “The principal criticism of the ad hoc proposal is that it would represent an egregious example of selective justice”, she says, “[b]ut I don’t see the advantage of standing on principle and letting perfect be the enemy of good”. It is better, instead, she argues, to pursue “what justice is within our grasp”.
This post, published on April 5th, after it was clear that Russia would not achieve a swift victory over Ukraine, caused quite a lot of controversy in the international law community. It argues that “[p]ainful as it might be for Ukraine, its acceptance of the merger [of Crimea with Russia] could be the step that could end Russia’s assault. Ukraine has already lost Crimea and is unlikely to regain it under any scenario”. Today, after several impressive Ukrainian counter-offensives, the possibility of retaking Crimea does not seem so impossible.
Another controversial post, this was part of a series of posts by Prof. Weller where he proposed different possible solutions for ending the war in Ukraine. In this post, Prof. Weller offered the full text of his proposed Draft Framework Agreement. Under the agreement, both forces would withdraw their armies to the status quo of 23 February 2022, meaning after the annexation of Crimea, but with Luhansk and Donetsk Oblasts receiving a special status as autonomous entities within Ukraine.
This post addresses the reaction of Western institutions to Russia’s invasion of Ukraine painting a stark contrast with other cases of aggression and injustice, particularly the situation of Palestine. This post resonated massively with our readership, entering, in less than a year, the Top-30 list of most read articles in Opinio Juris’ history. Because of the power of its critique, I will simply let it speak for itself:
“Erasing the double standards, bringing about universal compliance with international law — and, for the profession, issuing statements not only on easy situations, affecting White Europeans, but across the board — necessarily presupposes that international law is an appropriate and legitimate framework within which to address these situations. But as I explore in the context of the liberation of the Palestinian people (…), international law even fully implemented still operates according to a set of assumptions that drastically diminish the options when compared to that which oppressed people often demand. The hamster wheel is usually located within the hamster cage. A life outside the wheel, then, can still be the life of the cage. To shift the metaphor, as African-American lesbian feminist activist Audre Lorde observed, ‘the master’s tools will never dismantle the master’s house…they may allow us temporarily to beat him at his own game, but they will never enable us to bring about genuine change.’”
Currently, Kevin holds the record for the most-read article in Opinio Juris history (curiously, it is not an analysis of any international law issue, but Kevin’s review of the movie The Boy in the Striped Pyjamas, dwarfing most other posts with 56,674 individual views!). In less than a year, he now has another article in our all-time Top-10: this one.
In this post, Kevin argues that an ad hoc tribunal for Ukraine is “a bad” idea because it will not be able to obtain suspects and evidence. As Kevin puts it: “A Special Tribunal would not find it easier to prosecute Russian officials for aggression than a national court. A Special Tribunal is not necessary to affirm the unacceptability and criminality of aggression. And a Special Tribunal would be no less obligated than a national court to honour the personal immunity of people like Putin and Lavrov.”
In addition, Kevin believes that the creation of this tribunal would send a message about the “selectivity of international criminal justice”, when compared to examples such as the invasion of Iraq. As he puts it:
“I think Russia’s invasion of Ukraine is unequivocally the crime of aggression. I want to see Russian political and military leaders prosecuted for that crime, and I don’t believe the failure to prosecute George Bush and Tony Blair is a justification for not prosecuting Putin. But how Russian officials are prosecuted, and by whom, matters. A Special Tribunal created and run by the same states that invaded Iraq would not be legitimate. The hands of those states — particularly the UK and US, but also other states involved in the invasion itself such as Australia and Spain — are simply too unclean”.
So, these are the Top-10 most read posts of 2022. As you can see, our conversation was dominated by the war in Ukraine, both on how to address it and how to resolve it. Particularly, issues of selectivity and double standards were your biggest concern. This is part of the meta-conversation I referred to in the introduction, that I am proud Opinio Juris is able to facilitate.
This is also, of course, not to mean that the amount of views is somehow determinative of quality. We have had the honour of posting several fantastic posts with much less views than these, and I would encourage you to let us know of your favourite posts of 2022 below or on social media.
On behalf of all of us at Opinio Juris, I wish you all happy holidays and a festive end of year celebrations.