When I started teaching international law more than twenty years ago, it wasstill 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 ofpublic international law subjects. (Some even managed to stay on top of privateinternational law, too.) Today, being an international law generalist isimpractical; it's simply too difficult to keep current with the breadthof international law. From the scholar's perspective, it's a caseof “be careful what you wish for.” A generalist international laworientation used to be possible because there was so little of it, both on theground and in the scholarship. Those mid-century saplings—the variousdistinctive fields within international law—have grown to mature oaks,and expert knowledge of their many crevices and branches is beyond the capacityof any single observer. Not only does international law defy individual mastery,but the level of specialization now makes it difficult to talk across thesedifferent areas. My colleague in international criminal law might as well be adomestic family law person for purposes of professional points of connection. Weboth attend the ASIL Annual Meeting, but we no longer really speak the samelanguage.

Refugees dominate contemporary headlines. The migration “emergencies” at the southern U.S. border and the southernborders of the European Union, as well as the “crisis” in the Bayof Bengal, have drawn global attention to the dire inadequacies of theinternational refugee regime, even as extended through various principles ofnon-refoulement, in governing modern migration flows. Politicalresponses to these mass movements, from the Brexit vote to the election ofDonald Trump and his executive order halting the refugee resettlement process inthe United States, have threatened the viability of refugee law'sprotections. At the policy level, numerous high-level stakeholders have convenedin different constellations, through the UnitedNationsand otherbodies; manycommentatorsagreethat these meetings have accomplished little thus far in terms of lawreform. The refugee law paradigm consumes so much space in theimagination of international lawyers and policymakers that it is hard even tobegin to conceptualize an alternate approach to global migration law. The fearof losing even the narrow ground staked out to protect refugees stiffens theresistance to change. Proposals for reform tend to follow the tired old path ofsuggesting ways in which the refugee definition can be expanded to include newgroups of migrants (ranging from climate change refugees to anyone fleeingserious human rights abuses) rather than critically evaluating the structure ofglobal migration law more broadly.

To speak of a “global migration law” is challenging, perhaps evenquite provocative, in an era in which walls are being continuously erected atborders and seas transformed into mass graves. The ambition of international lawoften seems to be to rescue what can still be saved: the refugee regime forexample, or minimally decent treatment of migrants once under the jurisdictionof a third country. A global law of migration, then, might be as much if notmore the law of obstacles to human mobility than a body of law premised on amore fundamental commitment to freedom of movement.

Internationalmigration law (hereinafter IML) can be described and conceptualized asa deconstructivist architecture both literally and metaphorically. Itis an architecture of fragmentation based on dissonance and asymmetry thatquestions the traditions of harmony, unity, and stability. Initiated by theFrench philosopher Jacques Derrida, the deconstructivist architectural movementdistorts the conventional oppositions between form and function, center andmargin, outside and inside.

Migration is already a significant global phenomenon, and it is likely to becomemore so. According to a recent World Bankreport, there are two hundred million international migrants. Thestudy reports that “migration pressures” will continue “forthe foreseeable future.” It will take “decades” to closeincome gaps between developed and developing countries; in 2015, the ratiobetween the average income of the high-income countries and that of thelow-income countries stood at 70:1. A “well-documented demographicdivergence” will add further pressure: “Population aging willproduce large labor-market imbalances and fiscal pressures in high-incomecountries as the tax base narrows and the cost of caring for the oldsurges.” This increase in demand will complement an increase in supply.“If current fertility and national employment rates remain as they are inthe developing world,” the Bank reports, by 2050 “nearly 900million [will be] in search of work.” Climate change and disasters willhave a more modest impact on the international level, although “increaseddrought and desertification, rising sea levels, repeated crop failures, and moreintense and frequent storms are likely to increase internalmigration.” And these numbers—measuring persons outside their homecountry for more than a year—do not include hundreds of millions ofpersons 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, GazaStrip, Sinai Peninsula, and Golan Heights, Israel's Military AdvocateGeneral (MAG), Colonel Meir Shamgar, appeared before a Knesset committee todiscuss the Israel Defense Forces (IDF)’s duties in the areas under itscontrol. Col. Shamgar had led the MAG Corps in the preparations in the eventthat a future war would find the army occupying beyond Israel's borders.Col. Shamgar began his presentation by stating:

Theodor Meron's editorialcomment revisits the question of the legality of settlements. I willtry to offer an additional perspective which looks at the underlying values ofthe laws of occupation and how these impact the legal analysis of settlementactivity in the Israeli context.

One of the unique features of Israel's legal, military, and politicalcontrol over the Occupied Palestinian Territories (OPT) has been the review by the SupremeCourt of Israel of the actions and decisions of the authorities inthose territories. Sitting as a High Court of Justice that has the competence toreview the actions of all persons exercising public functions under law, theCourt has entertained thousands of petitions relating to the legality of suchvaried actions as house demolitions, deportations, land requisition, entrypermits, and establishment of settlements. There can be little doubt that thevery existence of judicial review has had a restraining effect on theauthorities. While the Court has not ruled against the government that often,and has provided legitimization for acts of dubious legality, such as punitivehouse demolitions and deportations, it has handed down some importantrulings on questions of principle. Furthermore, in the shadow of theCourt, many petitions have been settled without a court ruling, allowing for afull or partial remedy for the Palestinian petitioner.

The fiftieth anniversary of Israel's occupation of certain Arab-inhabitedterritories following its victory in the June 1967 war is a good time to reflecton the question of how international law addresses resistance to militaryoccupation. This issue—and its counterpart, the rights of an occupyingpower vis-à-vis resistance—has arisen repeatedly in connectionwith this occupation. It has been at the center of polemical debates involvingIsrael, neighboring states, and the Palestine Liberation Organization, in a widerange of international fora including the United Nations. It has also arisen innumerous other conflicts in the past half-century, including in Namibia beforeit achieved independence in 1990, and in Iraq following the 2003 U.S.-ledintervention. The legal focus of this contribution is on the jus inbello. Certain jus ad bellum and human rightsissues raised by occupation and resistance that inevitably intrude at certainpoints will be mentioned in passing.

A raft of legislative proposals introduced in the Knesset over the last severalyears has raised the specter of Israeli annexation of additional West Bankterritory. Onebill would provide for nearly automatic application of new Knessetlegislation to Israelis residing in the West Bank. Asecond would authorize the expropriation under certain circumstancesof privately-owned Palestinian land for incorporation into Israeli settlements,extending the Knesset's reach to the regulation of West Bank land use bynon-Israelis. A third, entitled the “Maale AdumimAnnexation Law,” provides for the full application of Israelilaw in Israel's largest West Bank settlement, as well as in an adjacenttwelve square kilometer area called the “E1 Zone,” one of the fewremaining land reserves available for the development of Palestinian EastJerusalem.

Interest in the criminal aspects of the Israeli settlement project in the WestBank is hardly new; it informed the drafting of Additional Protocol I (AP I) andof the Statute ofthe International Criminal Court (ICC), and motivated Israel'srejection of both instruments. The 2009 Palestinian attempt to establish ICCjurisdictionpromptedextensivescholarlydebateon the preconditions for jurisdiction and on its territorial and temporalaspects, as well as on specific admissibility questions, primarily gravity.(Complementarity is not an issue with regard to the establishment of West Banksettlements, since Israeli law and jurisprudence do not prohibit it, althoughthey regulate some aspects related thereto).

In the present essay I compare the 2016 judgment of the International Court ofJustice (ICJ) in Nuclear ArmsRace (Marshall Islands v. United Kingdom) with the Court's 1966judgment in South WestAfrica (Ethiopia v. South Africa; Liberia v. South Africa). A seriesof similarities between the two judgments are obvious: They are two of the threecases in the history of the Court in which the judges were equally split and thePresident 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—theCourt retreats into an excessive formalism that protects great powers.

The International Court of Justice (ICJ)’s 2016 judgments on the threecases Obligations concerning negotiations relating to cessation of thenuclear arms race and to nuclear disarmament show the omnipresenceof the dichotomy between form and substance in the Court's case-law.Commentators and several dissenting judges have stressed that the judgmentsrepresent a landmark in the sense that the Court has radically departed from the consideration of flexible standards in applyingprocedural rules to the determination of the issue of identification of a legaldispute. In other words, it made form prevail over substance.

My very first publication, admittedly written in a language that many AJILUnbound readers might be unable or unwilling to read, was an essay on the Treatyon the Non-Proliferation of Nuclear Weapons (NPT) and its effectsvis-à-vis third parties. Already back then, I found it difficult tojustify how an international treaty could rubber-stamp such a highly unevenstate of affairs. The overt acknowledgement of the discrimination betweennuclear and nonnuclear states, the hypocrisy about “unofficial”nuclear states, and the Article VI obligation for nuclear states to negotiateeffective measures of disarmament, largely ignored in the first twenty years ofthe treaty, were all elements that contributed to my perception of unfairness,if not blatant injustice. As a young researcher approaching international lawwith the enthusiasm of the neophyte, however, this looked like a little anomalyin an otherwise fair and equitable international legal order. It did not set offwarning 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 havebeen so. And it is not that I leaned particularly on the idealistic side; itseemed normal to me … at the time.

Although caution must be exercised in attributing a policy to the InternationalCourt of Justice, it is difficult not to see the MarshallIslands judgments as part of a longer trend of the Court usingformalistic reasoning to decline cases concerning nuclear weapons.

The International Court of Justice (ICJ) has mostly emphasized substance overform and developed a pragmatic, flexible, objective, and fact-based analyticalapproach to jurisdiction. That is until a recent series of judgments veeringtowards jurisdictional formalism. However, to truly reflect its designation asthe “World” Court, the UN's principal judicial organ mustsurely adjudicate some of the “big cases” with global securityimplications and involving important obligations erga omnesbeyond strictly bilateral dynamics: the Marshall Islands cases were as good contenders as any for the Court to enhance its legitimacycapital.1 As acorollary, accepting this role might entail that the Court interpret itsjurisdiction in a flexible and progressive manner, which had always been itsmantra up until recently, so that the “big cases” have a chance ofgetting their foot in the door and being litigated.