College Of International Lawyers Research Articles

Ableism in the college of international lawyers: On disabling differences in the professional field

AbstractIn the wake of the #metoo and #blacklivesmatter movements, the masculine and ‘methodologically white’ nature of the core of the international legal profession has received renewed attention, and attempts to diversify it are well underway. Absent from the conversations that accompany such diversification efforts are reflections on the pervasiveness of ableism in the profession. Ableism describes implicit assumptions about the species-typical condition of the human body and the ways in which it interacts with the material and social world. The importance of ableism in excluding and marginalizing persons with disabling differences in international legal academia has widely been overlooked. This neglect simultaneously contributes to ableist re-productions of the profession and affects how international law understands and governs disability.

The Declining Status of International Law in the Decisions of the Israeli Supreme Court Concerning the Occupied Territories

This article examines the attitude of the Supreme Court of Israel towards international law in the past decade, focusing on cases concerning the Occupied Territories. The article argues that the status of international law in these decisions has, overall, declined, in compare to the decade between the mid-1990’s and the mid 2000’s. The article argues that while the international law of occupation still operates, officially, as the governing law in the Occupied Territories, the emphasis on compliance with the norms of international law in the Court’s decisions has decreased. Instead of relying on international law, the Court has increased its reliance on Israeli administrative law, and, in recent years, on Israeli constitutional law. The article suggests that the decline in the status of international law is rooted in a different perception of the role of the Court in relation to its international and domestic audiences, and that the change is related, at least partially, to the current attacks on the Court. Between the mid-1990’s and the mid-2000’s, the Court, under former President Barak’s leadership, perceived itself to be part of the “Global Community of Courts”, a transnational legal community of international and national courts engaging in an ongoing dialogue, reading and citing each other’s opinions and participating in what they perceive as a common judicial enterprise. The Court thus directed its decisions not only to the Israeli public but also to the international community and, in particular, to the international legal community, referred to by Schachter as the “invisible college of international lawyers”. The current Court, on the other hand, is struggling to maintain its status in within Israel. It thus focuses on its Israeli audience, addressing in its decisions, first and foremost, the Israeli public. While relying on international law may increase the legitimacy of the Court’s decisions among an international audience, the article argues that it may have the opposite effect on an Israeli audience, in particular in the current political climate. The recent Court thus retreats from the extensive referral to international law in favor of an approach that examines issues that arise in the Occupied Territories as if they were, essentially, internal Israeli matters, in a manner that coincides with the prevailing political discourse regarding the future of the Occupied Territories.

The 'Invisible College of International Lawyers' Forty Years Later

Referring to Oscar Schachter’s metaphor of the “invisible college of international lawyers” to describe international law as a profession, this contribution considers the role played by the “invisible college” in contemporary affairs, in light of three developments that have consolidated in the international legal order in recent years, namely: (i) the alleged fragmentation of international law; (ii) the multiplication of international courts and tribunals, with the consequent regularisation of international adjudication; and (iii) the shift of codification efforts away from hard law instruments.

Administration of Justice in the World Trade Organization: Did the WTO Appellate Body Commit 'Grave Injustice'?

AbstractJudicial administration of justice through reasoned interpretation, application and clarification of legal principles and rules is among the oldest paradigms of 'constitutional justice'. The principles of procedural justice underlying WTO dispute settlement procedures, like the conformity of WTO dispute settlement rulings with principles of 'substantive justice', remain controversial. This contribution criticizes the recent, harsh condemnation of the WTO dispute settlement rulings in the Brazil Tyres case as 'committing grave injustice'. After recalling the customary law requirement of interpreting treaties and settling international disputes 'in conformity with principles of justice' and human rights, the contribution examines the WTO Appellate Body case-law from the perspective of diverse conceptions of 'conservative' and 'reformative justice', 'general' and 'particular justice', procedural and substantive justice, national and multilevel 'constitutional justice', and judicial protection of transnational rule-of-law for the benefit of citizens. The article concludes that the panel, appellate and arbitration reports in the Brazil Tyres dispute, like many other WTO Appellate Body reports, reflect a growing concern 'to administer justice' in WTO dispute settlement proceedings. WTO judges and investor-state arbitrators should follow the example of the ICJ and of European courts and clarify the 'principles of justice' justifying their settlement of international economic disputes so that 'justice is not only done, but also seen to be done', albeit subject to 'trial and error'. Legal practitioners should support – and, as part of the 'invisible college of international lawyers', hold accountable – the emergence of an 'international judiciary' as an 'epistemic community' committed to defending rule of law, peaceful settlement of disputes and 'principles of justice' in mutually beneficial economic cooperation among citizens across national frontiers.