Welcome to the latest interview of the Völkerrechtsblog’s symposium ‘The Person behind the Academic’, the first one for 2024! With us we have Prof. Dimitry Kochenov, and through the following questions, we will try to get a glimpse of his interests, sources of inspiration and habits.
Welcome Prof. Kochenov and thank you very much for accepting our invitation!
May I first ask, as I usually do, what it was that brought you to academia and what was it that made you stay?
I think that academia is a very atypical way of making an impact; it’s concrete enough and it’s general enough at the same time. So when I first saw that it actually works as I suspected (that people read each other and then the general consensus on certain topics can change as a result, and then that this academic consensus gets connected with the global understanding of the issues), it just seemed to me as a very attractive environment to be in. Because you do not only investigate the past, you also affect the future, as we would like to believe. And of course we know all the stories about the fact that the prestige of academia is falling, that nobody’s interested in what professors think anymore. This might be true in many fields, but in general I think we can still make an impact.
If you were not an academic, what would you be?
I’m actually very pleased with my occupation at this point. I’m not considering any kind of alternative careers. Of course, plenty of legal scholars would tell you: ‘We would be bombastic lawyers in front of the best court!’, or ‘We would be writing the most fascinating prose!’. I’m not sure whether this would actually be the case, or whether this would make me happier than I am already. So to me, academia is a remarkable combination of such a huge array of different fields of human activity. Because academia is everything and nothing and it’s precisely the blur, the genuine nature of it that is attractive. And then this attraction also comes in part from the freedom that it gives you to manage your own affairs, to pick your own issues and to follow up on them. So it’s independence that is also very cherishable in the academic field.
Which are three texts that you would wish all academics working on international law would read?
I’m not really an international lawyer… I came to law through European law and European affairs, even though my first degree was French language and culture, something unrelated. But, what attracts me in law, in European law especially, is how the project gets reinvented on a regular basis and how we constantly forget what Europe and the world used to be about. So, when I teach EU law, I usually start by assigning the texts which are not immediately related to the law of today, but which deal with the European law of the past but still inform today’s understanding to a significant degree. I always assign a book which is called ‘Eurafrica’ by Hansen and Jonsson. This is a book that explains the origins of the European project as a colonial project, the Eurafrican internal market and the conditions that were built into the ratification of the European Community Treaty by France, when France demanded giving full recognition and space in the treaty to its colonies and then Belgium and all the others followed suit. So in fact it was not a European enterprise; it was an enterprise of European colonial empires intended to affect the subjugated peoples on different continents too. To a large degree this has not changed.
The second book that explains the nature of European law, and what we deal with in Europe, is Gregoire Mallard’s ‘Fallout’, which is the best answer to the question number one that we always hear from the students, when we explain the treaty structure of the EU: ‘Why is there a Euratom treaty, if there was already a European Economic Community treaty?’. Gregoire Mallard explains very well how the nuclear diplomacy worked behind the scenes, and how the attempts by Europeans to create an independent nuclear force, and to emerge – at least in their minds – as an alternative to the two superpowers, played a huge role behind the emergence of Europe as a supranational integration structure. So ‘Fallout’ by Mallard is absolutely spectacular: Europe’s original story, which failed, was about nuclear proliferation and supranational force, not only oxymorronic ‘peace’, which was in any case irrelevant at the time when our continent was assigned a role of a battlefield in a nuclear duel between the US and the USSR.
And then the third one is very new and this one I haven’t yet assigned, because I have just read it. So the next time I teach EU law, book number 3 will be Hans Kundnani’s ‘Eurowhiteness’. It is about the nature of the European project, and Kundnani is absolutely brilliant in explaining that nationalism should not necessarily exist in the context of a state. To him Europe, although it was viewed as cosmopolitan by the founders, is in fact also a supranational nationalist project, which is related to the ethnic identity of the inhabitants of the continent, and, hence, Eurowhiteness. We all knew this all along, but Kundnani is the first one who managed to pinpoint this.
These three books give an overview of what is sometimes missing from the discussions about the nature of the European project, when we start those discussions.
Not many academics are lucky enough to star in controversy news broadcasts on national TV. How did you feel about this ‘controversy’ when it arose? Have you ever felt your academic freedom restricted?
Academic freedom is something that we only have or not have at a moment when it is being assaulted by someone, when it’s being restricted. Of course, we would be better off without attacks on academic freedom. But it’s part of the political negotiation of the place of the academia in the world today, that we can logically expect attempts to problematize academic work.
The controversy part on Dutch TV is actually quite mundane, because sometimes the controversy arises precisely out of being faithful to the law and telling politicians, activists and deans of faculties the truth about the nature of one’s academic exercise. And, in this sense, I am of course proud of this kind of controversy, just as I am proud of the name of ‘the Passport professor’, because it simply shows that someone’s work is consequential. And it’s only consequential because very often it happens so, that the nature of the law as it is, would be perceived by sometimes the majority of people as unjust. Particularly so in the nationalist world of Eurowhiteness, which implies that the high reward of Europeanness can only be deserved by blood and not sold. So sometimes reminding people of their privilege and the lack of justice underpinning the legal system, especially if it’s a world system of passport apartheid, could be perceived as deeply controversial. There is always place for controversies, I think, if you do your job right, and if you are honest and wholesome in the exercise of your academic profession.
I was actually lucky being graced by a whole number of controversies so-called from the time of the publication of my book on citizenship by MIT, when all kinds of right wing US bloggers and extreme pro-Trump outlets were trying to portray my work as anti-citizenship. And in fact it is nothing but anti-citizenship because its focus is citizenship abolitionism. The global feudalism of today’s world, which ascribes rights based on bloodlines and your race and your pedigree should absolutely not be the only way of establishing who is to enjoy dignity and rights. The blood privilege method we employ globally would not pass national constitutional testing in any liberal democracy: it is against our contemporary idea of justice, yet, it remains the main tool of global population management today. So to me par excellence there can be no issue whatsoever with selling citizenship or giving it for any other reason whatsoever, precisely because citizenship is not a just way of ascribing status and status privileges and also obligations.
Plenty of problems only appear in sight once you have a global view of the issue. And this is the case with citizenship. Once one citizenship is described as working at the national level, then of course it’s very easy to be positive about it. And it’s very easy almost to proclaim it as something natural and something that can be taken as a given.
But this is only justified if all the states are offering more or less the same opportunities to their citizens and to their inhabitants. And, as I say in my book, since not all the states in the world are Denmarks, it actually raises plentiful significant issues of justice when we speak about citizenship. This is because the quality of all citizenships is radically different, as I have shown with Chris Kälin and Justin Lindeboom and there are radically different amounts of rights which are distributed based on those citizenships and they are only determined by the birthright lottery.
The QNI index shows that if you’re an Afghani, then you are in possession of no rights or dignity by law in comparison to someone, who is Dutch or French. And this is not my bias or my judgement, this is the consistent operation of global law today. Because global law today is the passport apartheid regime that makes sure that those who are dispossessed on the basis of low birth cannot upgrade their status through migration. And they cannot upgrade it otherwise, because the world’s inequalities are spacialized as Branko Milanovic teaches us – and their citizenship locks all the borders around the spaces of no opportunities where they are only allowed to be. So if you’re confined to a dispossessed space, and the borders of that space are policed by the barbed wire which is the colour of your passport because you’re locked in, and that space is not an attractive space, then citizenship becomes the main instrument of oppression. And in my scholarship I connect this to the concept of the ‘victims of citizenship’. So all those who are not born with a sufficiently privileged passport, which brings usable rights and which empowers more or less tolerable existence in contemporary world, are the victims and they have to work very hard to upgrade their status, and those upgrades can come in different forms.
So you can be unfortunate enough to be made to live for instance in Denmark for five years even if you dislike Denmark. Or to give the Maltese €1,000,000, which you might not have. Or to start making absurd trips to the archives somewhere in Ireland or in Eastern Europe to try to find some connections to any of the other states, which would ensure that there is a white bloodline among your ancestors, which will elevate your status globally in the system of blood-based passport apartheid to something more attractive and tolerable. So, this is the world, which we live in.
And then another kind of controversy, which I’m particularly proud of, was related to my work on the illegal ousting of Advocate General Sharpston from her seat at the Court of Justice of the European Union. Because the Member states together mobbed a sitting Advocate General out and used Brexit as a pretext in order to assault independence of the Court of Justice in violation of all the substantive and procedural rules, which would underpin the composition of the court. And we have a very detailed European Law Journal study on this with Graham Butler, which was based on the heartbreaking events, which we followed in the Verfassungsblog (see here, here, here, here, and here). There was such a rain of comments because of course law – especially EU law! – is a very complacent discipline; unless you excuse anything that is done by the sovereign, you’re probably not a good lawyer. And I don’t hold any grudge against those people who probably tried to be that good lawyer by being excessively unprincipled, of course. Advocate General Sharpston’s courage to defend the Rule of Law is exemplary: a true inspiration.
As academics we’re not only lawyers, which means that at a certain point it is our absolute obligation to at least try to tell the truth to power. So if the Member States behave as if the law doesn’t exist, and the Court of Justice is not there to tell them that the law is actually in place, attacking own members instead, then, unfortunately, it takes academics to remind everybody of the fact that actually the rule of law is not a myth, even at the European Union level – and that at least in the future we should expect a better behaviour both from the Member States and from the Court of Justice. Is telling the Court that it has failed on the job disrespectful? – Not at all, as long as there is a hope that the law would not be ignored again and again. So all kinds of interesting comments there, and any controversy of this sort is a sign that we’re doing our job right.
Have you experienced or witnessed discrimination in academic circles? How have you reacted to these instances?
Discrimination very much comes from the curious perception that people own their legal systems by birth, that someone who was born in the Soviet Union cannot actually make sense of the beautiful complexity of EU law. I do not think it’s really discrimination – it is stupidity, and academia offers the same faithful representation of the general spread of intelligence in our societies as any other profession would. So I think to speak about academia as a class of particularly endowed or particularly thoughtful people would be a deep misconception. There are all kinds of guys. And this is not a bad thing because everybody knows very well who is who.
We have met each other through the SHARED Project at the European Parliament, where I remember you strongly expressed your disapproval of the ‘wooden’ responses of a director from the European Commission to questions about pushbacks. What advice would you give to early career scholars who wish to be as bold in such situations, but fear that their criticism may not be taken as seriously? Obviously, I am asking for a friend…
We were facing a director from the European Commission, who was failing in her job. And I was simply ashamed of her behavior at the meeting, because she pretended that she didn’t know the basic facts, which were the fundamental starting point of the whole discussion that was taking place. As scholars, lawyers and citizens we deserve better. With this kind of people in place, we have a problem in the European Union, and it is our obligation to shame them and to tell them every time they show their real face that we are deeply dissatisfied with their hypocrisy and self-content incompetence – precisely what I have done on behalf of every single person present in that packed room. And in general, I think I can quote Sorokin, a Russian writer who lives in exile in Berlin – a brilliant writer, who started in the early 80s, during the lethargy of the Brezhnev times, when you couldn’t say anything. In one of his recent interviews, he says: ‘At a certain point I realized that, as a writer, in this kind of setting, you can either be afraid or write. And I chose to write.’ So I think there is a lot to be said for simply doing what you believe is right. From the point of view of the potential to create injustice there is no difference between our Director at the Commission and a lowly Brezhnevian bureaucrat.
And especially I don’t believe in all this ‘early scholar’, ‘early career’, ‘late career’, because it seems to me entirely beyond the point. We don’t have a career really. Sometimes one fundamental insight, one crucial publication can mark your path early on. It can be that at the age of 21 you have already published your main paper and there is nothing to be ashamed of because you have made a fundamental impact. I don’t believe writing or reading grant proposals or sitting at department meetings that might make no sense is something that we can call a career. This kind of tedious part of the package distracts us from our main task, which is precisely telling the truth to the power or reminding politicians, judges, and bureaucrats, that, even in the EU, they are not above the law. Unless you’re yourself, you’re not an academic. Because then you become precisely that woman, the civil servant who pretends that some kind of lack of awareness, if not idiocy, can protect her from just criticism and from being deeply ashamed of what she stands for.
If you could, which unspoken rule of academia would you instantly erase?
I’m trying to think about unspoken rules… I would introduce rules. For instance, I always try not to show up at conferences without a tie (of course it doesn’t apply to half of the participants) but I very often notice that I’m the only person dressed in that way.
I think the only rule would be not to believe in rules too much. Because high quality work stands out and it probably connects to our established ways of vetting the quality of scholarship, which fail especially legal studies on numerous occasions, since very often peer review would imply [an] over cautious approach to the whole discussion of an issue which is of relevance.
It’s not about giving advice really, but I personally try to read as many working papers and drafts and conference papers as published papers, and – surprise surprise – very often the published versions of the working papers and the conference papers are significantly worse, much poorer-worded and less convincing than the original drafts. And to me the discrepancy is only due to peer review and to this over cautious approach to what should be found in print.
Luckily, much has changed since our fathers and grandfathers were professors. So now we have blogging. And the best blog editors do not make texts sterile before they get published.
And some of the blogs are as influential as the leading journals of course, especially in terms of bringing real life impact. So, we are slightly better off than how academia was done in the times of our forefathers.
Which of your publications is your favourite one? And which of them is your least favourite?
It’s very difficult to approach one’s work in this way because I think, at least to me personally, all what I do is a continuum. Speaking about one particular publication, while it’s probably possible because they do exist, in fact is depriving this continuum of thinking and publishing the results, the current state of that thinking as a single body of work, as a single engagement. To me the best are still to be written; every time I read back old stuff, I usually have a feeling that this should not have been published.
But ultimately, since every paper builds necessarily on the basis of all the other reading, and all the other writing, and all the other thinking, and all the other teaching (teaching is particularly important) I think what will come in the future will be much better than what came in the past. It’s not that I would advise my work, but in terms of social significance, what I cherish are the attempts to reach out to a broader audience than just the experts, who are reading. And for this I think my little book, which is called Citizenship and was published by MIT Press, is so far the most successful attempt exactly of that, because it’s not overburdened by footnotes, it’s not presenting simple things in an extremely complex way, and, at the same time, it is making a point, which is understated in the rest of the scholarship. So, I think it’s one of the main anti-citizenship books on the market today.
Have you ever drawn influence from any form of art in your work? Is there anything artistic about writing academic texts?
Since law is not a science and we pretend that we’re all academics, I would almost rephrase the question. I read somewhere that the legal scholarship is an untapped body of anthropological work. It’s basically like biblical commentary; we work with texts and we try to limit ourselves to texts. Sometimes we selectively connect those texts and the interpretation of those texts with the world, but then it depends on our ambition and what kind of the world we pick.
And of course art is always inspiration. Some of the scholarship pieces could actually emerge as art objects themselves. Think about Tûtû by Alf Ross.To me, writing like this is an art form as of itself. And it is the same feeling we might also have when we look at old scholarship related to legal systems, which are long gone and which are of what you might think no relevance today. And still, it does not matter what kind of legal system you use as your starting point, you can make beautiful arguments in a sophisticated, outrageous and convincing way, and then, if you cherish the profession, you will see and appreciate the quality of those arguments and then, to me, that is art.
What is your favourite place to read and write? What is always near you when you read and write?
I always work in cafés and on airplanes. So basically when I land, I try to speak with friends or simply look at the guides of the best coffee places. I spend my life walking from one coffee place to another and changing cities and countries regularly.
Because, without this change of scenery and climate, for me it would be difficult to convince myself that I really have to continue reading that pile of printouts – I only work with paper.
So when I travel, there’s always a trolley filled with paper, and then my biggest pleasure – beyond the pleasure of finding a spectacular article, which happens very rarely, but this only increases the joy – is the pleasure to discard the terrible pieces. And there’s so much garbage after garbage, shameful nonsense that has been published, including in renowned journals, in my respectful opinion, that simply tearing those pieces above my beautiful coffee cup and putting them next to my coffee cup, and, then, the taller the pile, the lighter my trolley is, until I reach my office or a friendly hotel receptionist to print much more. This kind of games actually help to live a rewarding life.
Ideally, whom would you want to find waiting for a meeting with you outside your office next Monday?
There’s actually zero chance that anyone will be waiting for me outside my office because, well, I am at CEU and CEU has been kicked out by the Hungarian government. So, although my office is in Budapest, all the teaching is always in Vienna, and in theory I could have gotten an office in Vienna, but it simply makes no sense. I come and leave and I meet with the students in cafés and after the lectures. So Budapest remains a place where we don’t have students and, well, let’s say this is a terrible thing about the EU today. There are plenty of values which are proclaimed but once you start looking in practice even after the European Commission won the case against Hungary which concerns CEU, this didn’t bring about any change on the ground and the university is definitely gone – by far the best University in the country.
What are you working on currently? What may we anticipate in the near future?
It’s a very difficult question because I work on so many things at the same time that picking what is most relevant is almost difficult and I’m constantly torn. So, every morning I start at the same cafe when I’m in Budapest (when I travel, I find another great café) and I spent at least a couple of hours reading. But I have different piles with me, and those piles relate to the Rule of Law, especially Rule of Law enforcement at the supranational level, they relate to statelessness and citizenship, especially on the underappreciated importance of statelessness as an independent status in national and international law, something that we had 150 years ago. Nietzsche was stateless all his life because he gave up his original nationality after moving to Basel, and he cherished that status of having no nationality. So I want to redeem statelessness.
And then the third is the horrible situation at the EU’s borders, the mass murder. I feel the pain of belonging to a political system that does not have the minimal of decency of giving itself a critical thought after dozens of thousands of people are killed directly or indirectly as a result of its own policy.
So in fact probably the most crucial work and the work which is never cited, because the majority of colleagues don’t like it since they think it’s anti-European; while I think it is the most pro-European work, is on lawlessness law. This is something that I started with Sarah Ganty, who is at Ghent and at Yale and I continue working along the same lines, looking at particular borders and particular actors also with other authors. We have a paper with Alexandra Jolkina for instance looking at the EU-Belarus border, and then Sarah has just published a blog post with Eva Sevrin on the Belgian state ignoring thousands of court cases about the asylum seekers’ reception, simply saying that since it’s about the asylum seekers, they don’t care about what national or supranational courts or the ECtHR have to say about it. There are now 8.000 cases, which the government lost and the government openly makes and repeats the political statement that there will be no enforcement, because the government doesn’t believe that it should in any way improve the situation of all those people who are sleeping in the streets of Brussels as a result of the breach of the law by the Belgian government. So lawlessness law in all its emanations will probably be the main line of work in the near future, and the most important paper to date on that is called the EU’s Lawlessness Law and it was put online by the Jean Monnet Center at NYU Law School last year.
Thank you very much, Prof. Kochenov, for participating in our symposium and for having taken the time to respond to our questions!
Thank you, it was my pleasure.