ESIL Newsletter January 2021
Editor: Sandrine Maljean-Dubois (University of Aix-Marseille)
In this issue
1. President’s Message
A year ago (almost a century, it seems…), in my message to our readers, I heralded 2020 as the start of a new decade for the Society, which will be turning 20 in 2024. Looking back a year later, 2020 will most probably be engraved in our minds as the year of the COVID-19 pandemic (see here: ejiltalk.org/our-most-read-posts-of-2020).
To paraphrase Lemony Snicket, those interested in happy endings would be better off reading some other book (or looking at some other year). At the same time, while 2020 began with a not so pleasant start, with ups and downs during the middle, it ends with the sign of a -if not happy-, perhaps more auspicious ending, with vaccination in sight; and I should add with a hindsight acquired, which will hopefully serve as a lesson to those of us who have not had to face world wars or other global disasters, to look at the future through a different lens, since the after-phase of the pandemic will be equally crucial, not only for global health, but also for the global economy, managing crises, enhancing solidarity, ensuring human rights under all circumstances, and strengthening international institutions and cooperation.
Despite challenges faced this past year, our Society continued its work, in different settings and adjusting to new ways of communication. We continued to communicate, to discuss, to debate in new ways and formats, and hopefully we will soon be able to meet in person in 2021, because nothing can replace our vibrant in-person meetings.
I take this opportunity to reiterate an appeal for enhancing our membership from all corners of Europe. This is essential for the Society to be able to further expand its outreach and activities. Furthermore, I would stress the importance of organizing other ESIL events in addition to our regular annual events. We recently had an on-line meeting with our Interest Group conveners and received useful feedback from our community of international law colleagues.
Many warm wishes for a productive 2021!
2. Guest Editorial: Rule of Law on a menu?
It is not unusual in times of emergency for the executive branches to revert to extraordinary measures, though, to question the obligation to respect the rule of law by EU Members States (MS), raises some serious concerns and, if these are not taken seriously, any further backsliding on the rule of law can lead to pernicious developments in the near future.
As per definition of the United Nations (UN) system, ‘the rule of law is a principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards. It requires measures to ensure adherence to the principles of supremacy of the law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness, and procedural and legal transparency.’ There are numerous inter-governmental and intra-system activities evolving within the global understanding of what the rule of law stands for (see un.org/ruleoflaw).
The Treaty on European Union (TEU) refers to the rule of law twice already in the preamble – as a source of inspiration and confirming the commitment to it by the MS – and in Article 2 unequivocally states that ‘The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail. (emphases added); and further refers to it in Article 21 (EU’s external action).
The EU’s (previously European Community’s) ‘rule of law conditionality’ is well documented in its relations with third States (e.g. the Copenhagen (admission) criteria, established by the Copenhagen European Council in 1993 and strengthened by the Madrid European Council in 1995; the 2000 Cotonou agreement with the ACP countries; the Agreement establishing an Association between the European Union and its Member States, on the one hand, and Central America on the other – considering the respect for the rule of law to be an essential element of this agreement). All these relations provide States, among others, with financial benefits.
Therefore, it is, incomprehensible on what legal basis certain MS attempt to block the seven-year EU budget and coronavirus recovery fund, that seeks to help governments across EU deal with the economic fallout of the pandemic, due to the imposition of the rule of law conditions.
Can the MS really pick and choose from the rule of law, as if it were a menu for special occasions and/or special guests? The unequivocal answer should be: No! The rule of law stands as a fundament for any international cooperation, within and among international organisations and States in a rules-based international order. It underlies the existence of the EU, to which all the MS freely entered into, and as long as they all sit behind the same table, they are by definition preconditioned by the respect for the rule of law ingredients for all their meals – those being served to others, as well as their own – in spite of the fact that some might be more difficult to digest than others in particular context of individual States, depending on the health and condition of the body.
4 December 2020
3. ESIL Teaching Corner
A Modest Proposal on Zoom Teaching – By Joseph Weiler
No preliminaries are necessary here. One result of Covid-19 has been a shift to online teaching by Zoom (or similar platforms). In some law faculties all teaching is online. In most faculties most teaching is online with some hybrid teaching, and in a few (privileged) places in-person teaching remains viable.
It is also a commonplace that most teachers find Zoom teaching inferior to in-person teaching, both from a didactic and a human point of view. The two are oftentimes intertwined.
And yet the impact of Zoom teaching will differ according to one’s style of teaching, and will affect some styles more than others. The challenge in each case, though, is to narrow the quality gap between in-person teaching and Zoom teaching, regardless of the style of teaching adopted.
At one end of the scale are those whose teaching is principally a lecture (with some time for questions at the end perhaps). At the other end are those, like myself, whose teaching, even in large classes, is principally through question and answer – the so-called Socratic method (though I am not sure what Socrates would think of this use of his name and method). Though the class is conducted through Q&A it is, as I tell my students, simply lecturing through their mouths, which has various benefits with which I need not trouble the reader here. I certainly do not want to argue for or against these different poles and the variants in between. Each has its pros and cons.
Grant me, however, that the gap between in-person and Zoom teaching is the narrowest the closer one’s style of teaching is to the formal lecture. In fact, there are several faculties where the online teaching, or significant parts of it, at least in larger classes, is by recorded lectures.
For those whose style of teaching is closer to mine the Zoom challenge seems formidable. Indeed, the challenge for ‘Socratic teachers’ is greater also as regards in-person teaching. It is such a common experience to pose a question to a class and face 60 blank faces. There are so many reasons which explain this type of reticence. The teacher is then faced with a Charybdis and Scylla dilemma. You may rely on the ‘usual suspects’ – those who are always eager to participate. This carries two risks: essentially you are actively teaching only a small number of students while the rest regress to passive mode, pen poised to write down the ‘right answer’ without active mental and verbal engagement. Additionally, there is no correlation between eagerness to participate and quality of answer – a bit like a karaoke party where the microphone is habitually hogged by the tone deaf who are unaware how badly and out of tune they sing.
Alternatively, you can ‘cold call’ on students – even those who have not raised their hands. There is a naming and shaming cost to this method, which breeds resentment, anxiety (will he call on me?) and gives expression to that wise Talmudic saying: the strict cannot teach and the timid cannot learn. I have largely moved away from cold calling.
Here then is the ‘Weiler Method’ for dealing with this dilemma, both in person and on Zoom. When teaching in person, whenever I pose a question that is not trivial and requires some thinking and deployment of analytical and synthetic skills as well as legal imagination, I pose the question, explain it and then say: now, take five minutes to talk to your neighbours. In a 110-minute class this might happen as often as 10-15 times. I explain the benefits to the students: with more time to think and specially to deliberate with one’s colleagues, the answers will be better thought out, substantial and substantive (not telegrams). Additionally, and I explain this too, I instruct them to do something that should become second habit: don’t think only what you want to say but what would be the most effective way to say it. In other words, each exchange is also an exercise in articulate presentation.
There is a third reason for this method, which I do not explain: there is a much greater student willingness to speak and less reticence on my side to call not on an individual but on a group: What did your ‘group’ think? And invariably the answer will start with a ‘We thought’ this or that, spreading the risk, so to speak. I have been doing this for over 25 years and it works for the most part splendidly, even in jurisdictions that are not accustomed to proactive teaching. Students adapt quickly – time to think, group deliberation, answer, and then discussion from other groups and the instructor.
Does one not lose an awful lot of time? Well this goes to one’s philosophy of teaching. I may ‘cover’ less, provide them with less fish, but turn them into extraordinary fishermen and women.
How, then, to adapt this to Zoom? By a very extensive and liberal use of the so-called Breakout Rooms (I call them Discussion Rooms – breakout makes me think my class is a prison). With a single click Zoom will allocate the students in an arbitrary fashion to as many discussion rooms as the instructor elects. I determine the number so that in any room there will be no more than three to four students (speak to your neighbour). After five minutes, sometimes less sometimes more (depending on the question), I click the students back and then simply cold call on any room by number: What did you in room 9 think? And so goes the class. The effect is very similar to the in-person experience, with the added advantage that throughout the class students are having real conversations with their colleagues, diminishing somewhat the Zoom alienation. And yes, I do this, too, in one of my classes that right now has 117 students. Finally, I request my students to have videos on. Concerns for privacy can be dealt with by another single click activating the artificial background. I have had no pushback and it definitely diminishes the alienating features of zoom, not least talking to black screens.
For your consideration. JHHW
We warmly invite all ESIL Members to peruse and to contribute to the ESIL Teaching Corner, an online resource developed so that ESIL members can share syllabi, module outlines, reading lists, and other international law teaching tools. We have developed the Teaching Corner to encourage the dissemination of good practices, and especially to provide support for early career researchers who may be designing a course for the first time.
Of course, whomever wishes to find some inspiration on the teaching of international law is warmly welcome. By seeing the innovations and ideas of others, we hope to nurture and inspire innovative teaching both in Europe and beyond. You will find materials here that might prove innovative or useful both in relation to substance as well as form, for example, in relation to assessment, or how to structure a course relating to international law mooting. During this particular pandemic, in particular, much inspiration can be drawn from others’ shift to online or blended learning.
To take a look at the Teaching Corner, go to the ESIL website https://esil-sedi.eu/ and click on the right-hand tab:
Once in the Teaching Corner, please select the ‘Add Course’ option from the drop-down menu and fill in the online form. Your syllabus will then go to the editors of the Teaching Corner and will be added to the ESIL Teaching Corner within a few days. To see what’s already in the Teaching Corner, go to ‘Search Course’, fill in the relevant criteria, and click on ‘search’.
4. 2021 ESIL Annual conference
The 16th annual conference will be held 9-11 September 2021, with pre-conference workshops on 8 September. The programme and the venue will be the same as planned for 2020; see our website for more information. All speakers for 2020 have been invited for 2021, and we thank them for their positive responses.
5. 2021 Research Forum
On April 15th and 16th, 2021 the University of Catania, Department of Law, will host the 2021 ESIL Research Forum “Solidarity: The Quest for Founding Utopias of International Law”. Registrations are open.
In light of the ever-evolving circumstances, the event will follow a blended format if needed as to allow all attendants to join in presence and/or through online mode.
6. ESIL Events
On December 4, 2020, an ESIL Kraków-Leiden Symposium “Exploring the Frontiers of International Law in Cyberspace”, co-hosted by the Chair for Public International Law at the Jagiellonian University in Kraków and the Grotius Centre for International Legal Studies, Leiden University, was held online, moderated by the Jagiellonian University.
This was the first of two scheduled events (the second meeting will be organized by Leiden University this spring) prepared under the auspices of ESIL in order to promote networking and co-operation between different universities of Western and Central and Eastern Europe and to explore topics of current interest in public international law.
The overall idea of the Symposium was to explore issues dealing with the application of international law in cyberspace. During four panels of the event, academics and practitioners from various countries focused on issues of responsible State behaviour in cyberspace – among topics presented and explored by panellists were: sovereignty in cyberspace, the conduct of hostilities in cyber armed conflicts, State responsibility in cyberspace and extraterritorial jurisdiction. The topic of the symposium steadily gains prominence as a field of research in public international law, and the issues presented during this event will soon result in an interesting scientific publication.
7. ESIL Reflections
ESIL Reflections are short papers published on the website of the European Society of International Law (ESIL). ESIL Reflections offer up-to-date reflections on current issues in international law.
The Reflections are now in their sixth year, covering a wide range of topics relating to current developments in international law and practice as well as theoretical reflections in a way that is relatively accessible to non-experts. The aim is to foster discussion between ESIL members and international law scholars and practitioners more generally – in Europe, but also beyond. ESIL Reflections are published online and distributed freely to ESIL members.
The editors are Federico Casolari, Patrycja Grzebyk, Ellen Hey, Guy Sinclair and Ramses Wessel (editor-in-chief).
ESIL Reflections are short papers (3000-4000 words) that argue one particular point that may trigger further debate in the scientific community. Extensive referencing is to be avoided. References are only necessary in case of direct citations or when new or less well-known works are mentioned.
Latest publications are:
- ESIL Reflections COVID-19 Series – Malicious Cyber Operations against Health Infrastructure during the COVID-19 Pandemic and the Renvoi to Sovereignty in Cyberspace by Nicholas Tsagourias
- International Law in an Age of Post-Shame by Fuad Zarbiyev
- States’ Resilience to Future Health Emergencies – Connecting the Dots between Core Obligations and Core Capacities by Brigit Toebes
- Due Diligence and Extraterritorial Human Rights Obligations – Mind the Gap! by Samantha Besson
8. ESIL Series
In 2017, ESIL and OUP established a book series to publish high-quality volumes on the themes of ESIL Annual Conferences and ESIL joint events.
So far, three volumes have been published, namely
- The Judicialization of International Law. A Mixed Blessing?, edited by Andreas Follesdal and Geir Ulfstein (2018)
- The European Convention on Human Rights and General International Law, edited by Anne van Aaken and Iulia Motoc (2018)
- How International Law Works in Times of Crisis, edited by George Ulrich and Ineta Ziemele (2019)
Anne van Aaken, who led the series over the past years, stepped down as General Series Editor in September 2020. The ESIL Board nominated Christian J. Tams to succeed her. Anne stays on as a series editor, together with Basak Cali, Yuval Shany, André Nollkaemper and Carlos Esposito.
Volume 4 of the series —Migration and the European Convention on Human Rights — will publish in late February 2021. Edited by Başak Çalı, Ledi Bianku, and Iulia Motoc, the book investigates where the European Convention on Human Rights as a living instrument stands on migration and the rights of migrants. The book evaluates the case law of the European Court of Human Rights concerning different categories of migrants including asylum seekers, irregular migrants, those who have migrated through domestic lawful routes, and those who are currently second or third generation migrants in Europe.
Further volumes are in the pipeline, addressing ‘The Protection of General Interests in Contemporary International Law’, ‘Secondary Rules of Primary Importance’ and ‘International Law and Universality’.
9. News from Interest Groups
ESIL Interest Groups are a vital part of the Society’s success and activities. A list of the groups is available on the ESIL website.
ESIL IG History of IL
On Friday 18 December 2020 (09:00-10:40 CET), the ESIL IG History of International law convened an informal online symposium on the JHIL special issue “Politics and the Histories of International Law”. Florenz Volkaert (Ghent/VUB), Daniel Ricardo Quiroga Villarmin (Graduate Institute), Wouter De Rycke (VUB), Rafael Zelesco Barretto (Naval War College of Brazil), Filip Batselé (Ghent/VUB) and Jaanika Erne (Tartu) each presented the main features of a paper in the issue. The event attracted from Australia, Ireland, Germany, Switzerland, Belgium, Brazil, Denmark, Estonia, Turkey, The Netherlands and the United states. Further online symposia are foreseen on ongoing research.
ESIL IG on the Law of the Sea
We, the ESIL IG on the Law of the Sea, are happy to announce that our interest group panel proposal, entitled ‘Nature, Past, Present and Future of Law of the Sea Scholarship’, was chosen to be included in the 2021 ESIL Annual Conference programme as Agora 12. The Agora will be held in Stockholm on 11 September 2021. The speakers will be: Irini Papanicolopulu, Miguel García García-Revillo, and Richard Barnes, and it will be chaired by André Nollkaemper. We look forward to seeing you there!
ESIL IG Biolaw
In a year still dominated by the COVID pandemic, Biolaw IG is developing an extensive programme, some in close collaboration with other IGs. At the annual conference in Stockholm, the IG is organizing Agora 11 on “The Making of International Biomedical Law”. In collaboration with International Health Law IG, a face-to-face event on “Innovation and COVID-19”, and with the International Environmental Law IG, a webinar on “Wet-Markets and Pandemics” are to take place. A book with main contributions from the 2019 seminar “Sound Science-Based Regulation in the Post-Truth Era” is ready for publication. Future events, on human genome and global vaccination, are being designed.
ESIL IG on International Courts and Tribunals
Following the call for candidates in November 2020, we are pleased to inform you that the following five members will form the new CC of the Interest Group on International Courts and Tribunals. They will serve for a 4-year term.
- Veronika Fikfak
- Edouard Fromageau
- Machiko Kanetake
- Cecily Rose
- Stephan Wittich
10. ESIL membership renewal
ESIL membership is for the calendar year, from January to December. If you are not a 5-year member or a lifetime member, or if you have not yet responded to the recent reminder emails, it is now time to pay your fees for 2021. You are strongly encouraged to do so as soon as possible in order to be included in our publications and in the 2021 ESIL Interest Group membership lists.
Paying the fee is quick and easy: log in to the online membership system, click on ‘Edit Account Information’ to check that your account details are up to date, and then proceed to payment. There are now 19 ESIL Interest Groups; make sure you have indicated all those you wish to join. You can join or leave any group at any time just by ticking the box next to the IG.
Members who wish to make a commitment to 5-year or to lifetime membership are very welcome to do so.
Last but not least, please encourage your colleagues to join the ESIL network: the Join ESIL button is clearly visible on the ESIL website home page.