This last month, like everywhere else, there was one all-dominating topic on the blog: Russia’s illegal invasion of Ukraine. As an international law blog, we felt an urgent need to act. While usually we see our role as editors rather behind the scenes, silently providing the space for discussion and exchange for our authors, in light of the developments we felt urged to step out of this role. On the day of the invasion, we published a special editorial on the situation in the Ukraine (later translated into Russian and Ukrainian) in which we condemned the clear violations of international law. Equally on the same day, we published a statement of the Board and the Council of the German Society of International Law (DGIR) on the Russian Attack on Ukraine.
Drawn to Crises?
Since then, we have received an unprecedented number of submissions and published an equally unprecedented number of blogposts on numerous different legal aspects of the war (see for an overview here; see also our new podcast format SHORTS, which is, as the name suggests, shorter than our usual podcast and features interviews with international legal practitioners). Just like our own team, many international law scholars felt the urge to act, to speak out and to participate in the ongoing debates. The famous observation by Hilary Charlesworth that “international lawyers revel in a good crisis” once more proves to be true, a circumstance that Barrie Sander and Immi Tallgren have critically analyzed on our blog two weeks ago.
A bit over a month since the illegal invasion of the Ukraine, we feel that now is a good moment to take a step back and reflect on our roles as editors and academics in this situation. While the immense solidarity with the Ukrainian people has of course been welcomed, in the meantime also a more critical discussion has started. Are the voices condemning the situation louder than in other violent conflicts? Are the reasons for the strong reaction by the international community not only the blatant violation of international law, but also the fact that this war takes place in Europe?
Hindering the Free Flow of Knowledge
One question that concerns us very directly relates to academic boycotts. Already on the day after the invasion, the DAAD, the German Academic Exchange Service, announced that it will restrict academic exchange with Russia. Other academic institutions did the same (see e.g. here for the UK). Just last week, certain voices demanded the exclusion of Russian teams from the Jessup Moot Court competition, which the International Law Student Association (ILSA) organizes yearly “in an effort to promote international understanding and cooperation”. Some Ukrainian researchers have even called for an interruption of all academic cooperation with Russian researchers, including the publication of papers by Russian researchers, thus also addressing academic journals. The letter states:
„The Russian academic community in the present circumstances actively assists the Russian regime not only in injecting a new arms race, but also in the global promotion of Russia’s official imperial policy. In addition to sanctions against the aggressor state, it is significant to end all forms of scientific and academic cooperation with Russian scientists (from grant funding to the publication of research results in international journals).“
While it is of course not our task to judge the imposition of restrictions in other (specific) disciplines (such as nuclear physics), we can speak from the perspective of our own discipline and would like to add some critical thoughts to the debate. For one, also when it comes to academic boycotts as a form of sanction, there is the risk of double-standards, as expressed in Martha Nussbaum’s criticism on the selectivity of academic boycotts. Indeed, she mentions – not in the Ukrainian context – that while not being in favor of a boycott in any case, she finds herself “disturbed by the world’s failure to consider […] relevantly similar cases”. Did we also consider cutting off student teams from an international learning environment when their international law professors were coming up with/supporting the most expansive and ridiculous interpretations of self-defense to assist their government’s aggressive international politics?
Furthermore, hindering the free flow of knowledge can seem problematic in and of itself. So far it seems that only few journals have heeded the call to decline manuscripts from Russian researchers (see on this here). The reason they bring forward is the universality of science, which requires to avoid the distortion of science by not considering relevant results (see e.g. here). From a legal perspective, academic freedom requires not to discriminate against authors based on their nationality or political views. This principle of non-discrimination is part of the right to share in and to benefit from advances in science and technology (Art. 27 of the Universal Declaration of Human Rights and Art. 15(1)(b) of the International Covenant on Economic, Social and Cultural Rights). The Committee on Economic, Social and Cultural Rights has explicitly stated that the “right to science” entails that “(…) everyone should have the open opportunity to participate in scientific progress, without discrimination.” (GC No. 25, at para. 17; see also para. 25). This is also reflected in the International Science Council’s vision of science.
In this context, we would like to recall the preamble of UNESCO’s constitution, adopted after the horrors of the second World War, which opens with the following words:
“(S)ince wars begin in the minds of men, it is in the minds of men that the defences of peace must be constructed.”
It continues:
“For these reasons, the States Parties to this Constitution, believing in full and equal opportunities for education for all, in the unrestricted pursuit of objective truth, and in the free exchange of ideas and knowledge, are agreed and determined to develop and to increase the means of communication between their peoples and to employ these means for the purposes of mutual understanding and a truer and more perfect knowledge of each other’s lives (.)”
Cutting off Students and Citizens?
A recurring question one must ask when discussing boycotts and sanctions is: Who are we targeting and who do we end up punishing? And will a further isolation of critical voices, of those equally suffering from their governments’ actions, not have the opposite effect, burning down the last existing bridges…? Indeed, many Russian researchers have already gone through great personal risks to express their opposition to the war. Often we end up punishing those groups or individuals who have no means at their disposal to change the actions of those we are targeting. This is true for the exclusion of students from academic exchanges based on statements or actions of high-placed university authorities. While the protection of Ukrainian teams from interacting with “their aggressor” is certainly a noble and understandable goal, we can wonder whether cutting even more people off from an international forum in the midst of a large-scale disinformation campaign is the way to go.
A similar question arises regarding the expulsion of Russia from the Council of Europe and thus from the European Court of Human Rights. While this step was indeed inevitable (as discussed on our blog), it equally entails some very sad side-effects. As such, in a Strasbourg Observers blogpost and again in a talk organized by Middlesex University, Philip Leach referred to the words of Karinna Moskalenko, a Russian lawyer and one of the founders of the CURE campaign. She argued that the inability to petition to the ECtHR is “a punishment for ordinary people, not for the government.” Galina Arapova also voiced this regret of Russian human rights defenders to have lost the last hope and an effective human rights instrument because of the actions of the Russian Federation.
Which legal pathways will these defenders turn to next? How will Russia’s exit from the Council play out in detail? What will happen to the pending cases against Russia (including prominent applications like the one against the Foreign Agents Law)? How will the international community respond to the recent information about violent attacks on civilians by Russian troops? In the future, we will continue to be an important platform in helping to find answers to these and many other questions.
What Else?
While these last weeks have been very much dominated by the conflict, as an international law blog, we like to pride ourselves on awarding sufficient attention to the crisis situation before us without losing sight of the structural problems or inequalities that face our societies today. In that spirit, we would like to draw your attention to two symposia that also have taken place on the blog in this last month: one on comparative climate litigation and one on women in international law. We very much recommend taking a look at these.
After the very busy month of March, we hope to provide you with a new list of interesting reads on both the current as well as the structural challenges and the role international law gets to play in tackling them.
Raffaela Kunz is a Postdoctoral Researcher and Lecturer at the University of Zurich, Switzerland. She is member of the Scientific Advisory Board of the Völkerrechtsblog.
Cathérine is a postdoctoral research fellow at the Academy for European Human Rights Protection (University of Cologne) and an affiliated researcher at the Human Rights Centre (University of Ghent). Her research is often socio-legal in nature and focuses on subjects such as procedural justice, perceived discrimination, Islamophobia as well as #MeToo and ‘Himpathy’. She follows the case law of the ECtHR and regularly contributes to third party interventions to the Court. She is a Managing Editor of Völkerrechtsblog.