When I started teaching international law more than twenty years ago, it was still 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 of public international law subjects. (Some even managed to stay on top of private international law, too.) Today, being an international law generalist is impractical; it's simply too difficult to keep current with the breadth of international law. From the scholar's perspective, it's a case of “be careful what you wish for.” A generalist international law orientation used to be possible because there was so little of it, both on the ground and in the scholarship. Those mid-century saplings—the various distinctive fields within international law—have grown to mature oaks, and expert knowledge of their many crevices and branches is beyond the capacity of any single observer. Not only does international law defy individual mastery, but the level of specialization now makes it difficult to talk across these different areas. My colleague in international criminal law might as well be a domestic family law person for purposes of professional points of connection. We both attend the ASIL Annual Meeting, but we no longer really speak the same language.

Refugees dominate contemporary headlines. The migration “emergencies” at the southern U.S. border and the southern borders of the European Union, as well as the “crisis” in the Bay of Bengal, have drawn global attention to the dire inadequacies of the international refugee regime, even as extended through various principles of non-refoulement, in governing modern migration flows. Political responses to these mass movements, from the Brexit vote to the election of Donald Trump and his executive order halting the refugee resettlement process in the United States, have threatened the viability of refugee law's protections. At the policy level, numerous high-level stakeholders have convened in different constellations, through the United Nationsand other bodies; manycommentatorsagree that these meetings have accomplished little thus far in terms of law reform. The refugee law paradigm consumes so much space in the imagination of international lawyers and policymakers that it is hard even to begin to conceptualize an alternate approach to global migration law. The fear of losing even the narrow ground staked out to protect refugees stiffens the resistance to change. Proposals for reform tend to follow the tired old path of suggesting ways in which the refugee definition can be expanded to include new groups of migrants (ranging from climate change refugees to anyone fleeing serious human rights abuses) rather than critically evaluating the structure of global migration law more broadly.

To speak of a “global migration law” is challenging, perhaps even quite provocative, in an era in which walls are being continuously erected at borders and seas transformed into mass graves. The ambition of international law often seems to be to rescue what can still be saved: the refugee regime for example, or minimally decent treatment of migrants once under the jurisdiction of a third country. A global law of migration, then, might be as much if not more the law of obstacles to human mobility than a body of law premised on a more fundamental commitment to freedom of movement.

International migration law (hereinafter IML) can be described and conceptualized as a deconstructivist architecture both literally and metaphorically. It is an architecture of fragmentation based on dissonance and asymmetry that questions the traditions of harmony, unity, and stability. Initiated by the French philosopher Jacques Derrida, the deconstructivist architectural movement distorts the conventional oppositions between form and function, center and margin, outside and inside.

Migration is already a significant global phenomenon, and it is likely to become more so. According to a recent World Bank report, there are two hundred million international migrants. The study reports that “migration pressures” will continue “for the foreseeable future.” It will take “decades” to close income gaps between developed and developing countries; in 2015, the ratio between the average income of the high-income countries and that of the low-income countries stood at 70:1. A “well-documented demographic divergence” will add further pressure: “Population aging will produce large labor-market imbalances and fiscal pressures in high-income countries as the tax base narrows and the cost of caring for the old surges.” This increase in demand will complement an increase in supply. “If current fertility and national employment rates remain as they are in the developing world,” the Bank reports, by 2050 “nearly 900 million [will be] in search of work.” Climate change and disasters will have a more modest impact on the international level, although “increased drought and desertification, rising sea levels, repeated crop failures, and more intense and frequent storms are likely to increase internal migration.” And these numbers—measuring persons outside their home country for more than a year—do not include hundreds of millions of persons 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, Gaza Strip, Sinai Peninsula, and Golan Heights, Israel's Military Advocate General (MAG), Colonel Meir Shamgar, appeared before a Knesset committee to discuss the Israel Defense Forces (IDF)’s duties in the areas under its control. Col. Shamgar had led the MAG Corps in the preparations in the event that a future war would find the army occupying beyond Israel's borders. Col. Shamgar began his presentation by stating:

Theodor Meron's editorial comment revisits the question of the legality of settlements. I will try to offer an additional perspective which looks at the underlying values of the laws of occupation and how these impact the legal analysis of settlement activity in the Israeli context.

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

The fiftieth anniversary of Israel's occupation of certain Arab-inhabited territories following its victory in the June 1967 war is a good time to reflect on the question of how international law addresses resistance to military occupation. This issue—and its counterpart, the rights of an occupying power vis-à-vis resistance—has arisen repeatedly in connection with this occupation. It has been at the center of polemical debates involving Israel, neighboring states, and the Palestine Liberation Organization, in a wide range of international fora including the United Nations. It has also arisen in numerous other conflicts in the past half-century, including in Namibia before it achieved independence in 1990, and in Iraq following the 2003 U.S.-led intervention. The legal focus of this contribution is on the jus in bello. Certain jus ad bellum and human rights issues raised by occupation and resistance that inevitably intrude at certain points will be mentioned in passing.

A raft of legislative proposals introduced in the Knesset over the last several years has raised the specter of Israeli annexation of additional West Bank territory. One bill would provide for nearly automatic application of new Knesset legislation to Israelis residing in the West Bank. A second would authorize the expropriation under certain circumstances of privately-owned Palestinian land for incorporation into Israeli settlements, extending the Knesset's reach to the regulation of West Bank land use by non-Israelis. A third, entitled the “Maale Adumim Annexation Law,” provides for the full application of Israeli law in Israel's largest West Bank settlement, as well as in an adjacent twelve square kilometer area called the “E1 Zone,” one of the few remaining land reserves available for the development of Palestinian East Jerusalem.

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

In the present essay I compare the 2016 judgment of the International Court of Justice (ICJ) in Nuclear Arms Race (Marshall Islands v. United Kingdom) with the Court's 1966 judgment in South West Africa (Ethiopia v. South Africa; Liberia v. South Africa). A series of similarities between the two judgments are obvious: They are two of the three cases in the history of the Court in which the judges were equally split and the President 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—the Court retreats into an excessive formalism that protects great powers.

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

My very first publication, admittedly written in a language that many AJIL Unbound readers might be unable or unwilling to read, was an essay on the Treaty on the Non-Proliferation of Nuclear Weapons (NPT) and its effects vis-à-vis third parties. Already back then, I found it difficult to justify how an international treaty could rubber-stamp such a highly uneven state of affairs. The overt acknowledgement of the discrimination between nuclear and nonnuclear states, the hypocrisy about “unofficial” nuclear states, and the Article VI obligation for nuclear states to negotiate effective measures of disarmament, largely ignored in the first twenty years of the treaty, were all elements that contributed to my perception of unfairness, if not blatant injustice. As a young researcher approaching international law with the enthusiasm of the neophyte, however, this looked like a little anomaly in an otherwise fair and equitable international legal order. It did not set off warning 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 have been so. And it is not that I leaned particularly on the idealistic side; it seemed normal to me … at the time.

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

The International Court of Justice (ICJ) has mostly emphasized substance over form and developed a pragmatic, flexible, objective, and fact-based analytical approach to jurisdiction. That is until a recent series of judgments veering towards jurisdictional formalism. However, to truly reflect its designation as the “World” Court, the UN's principal judicial organ must surely adjudicate some of the “big cases” with global security implications and involving important obligations erga omnes beyond strictly bilateral dynamics: the Marshall Islands cases were as good contenders as any for the Court to enhance its legitimacy capital.1 As a corollary, accepting this role might entail that the Court interpret its jurisdiction in a flexible and progressive manner, which had always been its mantra up until recently, so that the “big cases” have a chance of getting their foot in the door and being litigated.