I appreciate Professor Tan's willingness to assume the role of a discussant and endeavour to initiate the process of a collective exploration of the issues addressed in my article. It must be stated at the outset that I find his arguments not compelling, am disappointed that he has not approached the task more carefully and wish that he had ventured deeper into methodological and theoretical territory. However, the two-way flow of ideas for which the EJIL provides a fertile platform yields intellectual benefits even when it is uneven and incomplete.
This article is a reaction to Sarah Nouwen and Wouter Werner, 'Doing Justice to the Political. The International Criminal Court in Uganda and Sudan', 21 EJIL (2010) 941. It takes issue with attempts to understand international law and particularly the workings of the International Criminal Court in terms of Carl Schmitt's thesis on the political as distinguishing between friend and enemy. My contention is that parties to a violent/ political conflict may try to mobilize the law in their struggle, but that the structure of the law itself escapes the logic of the political: law cannot be 'political' in the Schmittian sense. The unexpected upshot of this is that Schmitt's notion of the political may operate as a normative criterion for testing whether legal officials are still respecting the constraints of their practice. If legal authorities are indeed in the business of defining the enemy of mankind, then they are not doing this through or with the help of the law. They may simply act against the law. To substantiate this point, the article thinks through the difference between conventional and absolute/real enemies and contrasts these notions with the characteristics of (international criminal) law.
Is it possible for the ICC to become an actor in political struggles over the definition and labelling of friends and enemies? In our article 'Doing Justice to the Political: The International Criminal Court in Uganda and Sudan' we gave an affirmative answer to this question, based on empirical findings from Uganda and Sudan and a concept of the political derived from Schmitt, Kirchheimer and Shklar. Taking Schmitt's concept of the 'enemy of mankind' as his starting point, Schotel disputes our conclusions. Although 'parties to a violent/political conflict may try to mobilize the law in their struggle', Schotel argues, 'the structure of the law itself escapes the political: law cannot be “political” in the Schmittian sense'. He continues: 'If legal authorities are indeed in the business of defining the enemy of mankind, then they are not doing this through or with the help of the law. They may simply act against the law.' Schotel's main points of disagreement with our article concern (i) the way in which 'enemies of mankind' are created; (ii) the structure of international criminal law; and (iii) the difference between the law and the people applying the law.
A book can change a mind, but only if that mind is ready to be changed. The mind of a particular child formed, up to the age of reason, in a time of war, is liable to be ready to ask questions of a particular kind about the human condition – still more so, when, at the age of eight, that child sees, on the front-page of the newspaper, images of Belsen and Hiroshima, images that would never be forgotten. In the 1940s it was still possible to believe in childish innocence. Now even small children know too much about the worst that human beings can do.
The great British philosopher Michael Oakeshott once observed that ideally teaching should be a personalized affair and take place one on one, as 'practical knowledge can be acquired only by continuous contact with one who is perpetually practising it'. This way, someone of shown mastery in a subject could guide a pupil along, instruct on points of detail, correct him or her where he or she would threaten to make a mistake, and carefully track the pupil's progress and suggest bespoke improvements. The fgpupil would learn far more effectively than he or she ever would in a classroom setting and, in particular, be able to reach beyond purely technical knowledge. After all, as Oakeshott explained elsewhere, education 'is the transaction between the generations in which newcomers to the scene are initiated to the world which they are to inhabit. This is a world of understandings, imaginings, meanings, moral and religious beliefs, relationships [and] practices'.
Almost eight decades after its publication in 1933, Oxford University Press recently republished Hersch Lauterpacht's book, The Function of Law in the International Community, with a new preface by Martti Koskenniemi that situates the work within the German legal tradition. The Function of Law is a significant work for several reasons and its renewed accessibility therefore very much welcomed.
Despite its important tradition in international law, international legal philosophy has, for the most part, been left aside by scholars during the past decades. While there has been a revival in legal philosophy in most fields starting with Hart and Rawls in the 1960s, international law has been conspicuously left out of this move. The founders of the discipline at the beginning of legal modernity (Grotius, Pufendorf, Vattel), as well as the pioneers of current ways of thinking about law and politics in the international sphere (Kelsen, Lauterpacht, Morgenthau), are, of course, all acknowledged – but not so much reread, rediscovered, or even overturned by contemporary research. Is it time to catch up?
Notions such as 'peace', 'war', 'threat to the peace', 'maintenance of international peace and security', and 'collective security' are not only open-textured but also living concepts. Their content and definition evolve with time and experience. In fact, these concepts are based on a consensus which exists at a particular time between members of the international community. The 2004 Report of the Secretary-General's High-Level Panel on Threats, Challenges and Changes, A More Secured World: Our Shared Responsibility (thereinafter 'HLP Report') and the reports that followed (the then Secretary-General's In Larger Freedom Report and the 2005 World Summit Outcome Document) aim precisely at delineating such a consensus on the global idea of collective security, 'global' in the sense that it touches upon all the notions mentioned above, notably the one of threat to international security (not to be confused with the threat to international peace and security).
Contrary to its narrowly phrased title, Das Tötungsverbot im Krieg ('The Prohibition to Kill in War'), Gerd Hankel in his most recent publication presents his thoughts on contemporary armed conflicts, humanitarian interventions, and the future of the laws of armed conflict. One should not be fooled by the small and handy format of the book; in its six manageable chapters, Hankel provides a plethora of recent and older examples and explanations to support his call for the revision of international humanitarian law.
The discourse on environmentally induced migration has now been going on for more than a quarter of a century. Still, to this day there exists no empirical or conceptual clarity regarding the existence and number of environmentally displaced persons, as well as the terminology and legal protection mechanisms that should be applied to them. In recent years, the focus of scholarly and institutional attention has shifted from environmentally induced migration in general to migration induced by climate change, adding further complexity to an already difficult topic. Climate change-induced migration now needs to be distinguished not only from the social, economic, and political factors compelling human movement, but also from the 'background noise' of general environmental change that might cause people to seek a livelihood elsewhere.