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I·CONnect

Blog of the International Journal of Constitutional Law

ICON Volume 17, Issue 4: Editorial

EOur Book Review Editor, Michaela Hailbronner, and Associate Editor, Marcela Prieto Rudolphy, join Editor-in-Chief, Gráinne de Búrca, in writing this Editorial.

Gender in academic publishing

In this editorial we raise a question which has been asked by many others before in different contexts[1]: where are the women in academia, and how do those who are there fare?

In asking these questions, and not others, we are very much aware that there is also a great deal to be said about diversity and equity in academia along many other dimensions, including ethnic origin, LGBTQ+ status, disability, social class, and more. With some regret, but also aware of our limitations, on this occasion we address only the issue of women.

Women, as we know, routinely experience violence, discrimination, and hostility which manifest in many ways, structural as well as individual; from the extreme cases of domestic violence, rape, and sexual harassment[2] to the subtler but no less pervasive forms of day-to-day discrimination and belittlement. Academia, although relatively privileged in comparison to other social spheres, is not as different as might be expected in this regard compared to other walks of life. Women within faculties, graduate departments, and colleges face sexual harassment, abuse, and even rape[3] as well as less visible but pervasive forms of gender discrimination, bias, and misogyny.

Women are significantly underrepresented in academic positions,[4] and very starkly so at the higher levels of the academic ladder despite the equal numbers of men and women as high-performing students and at the doctoral level.[5] On top of this, there are many other ways in which the “gender gap” manifests itself. These range from implicit bias in hiring and promotion[6] to the gender pay gap[7] to gendered expectations and judgments in mentorship[8] and teaching evaluations[9] to the fact that women bear a disproportionate burden of the administrative work within universities,[10] as well as of the domestic work at home.[11] As a result, there remain very significant differences in the general experience of men and women working within academia.[12] These differences grow even more stark for women of color and trans-women.[13]

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Published on January 23, 2020
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Call for Nominations–2020 ICON-S Book Prize


ICON·S | The International Society for Public Law is pleased to open the Call for Nominations for its third annual Book Prize. In line with the Society’s mission, the prize will be awarded to an outstanding book in the field of public law, understood as a field of knowledge that transcends dichotomies between the national and the international as well as between administrative and constitutional Law. Preference will be given to scholarship which, in dealing with the challenges of public life and governance, combines elements from all of the above with a good dose of political theory and social science.

The Book Prize will be awarded at the Society’s next Annual Conference on July 9-11, 2020 in Wrocław, Poland, to the author(s) of a book or books published in the two calendar years prior to the conference (2018 and 2019). The winner will be selected by the Society’s Book Award Committee, chaired in 2020 by Anne Peters.

Eligibility Criteria

Monographs on public law as defined above written in any language are eligible for nomination. Only books published up to two years prior to the year of the annual meeting are eligible for nomination. The relevant criterion is the official publication year as stated in the book’s front-matter. Repeated nominations in consecutive years are not permitted. Books nominated for the 2018 and 2019 Book Prize are not eligible. Nominated books must moreover be the first original edition.

Nomination Procedure

Members of the Society’s Executive Committee and Council, groups of at least three ICON-S members, book review editors of academic journals, as well as scholarly publishers are invited to nominate books, up to a maximum of 5 (five) each. The Book Prize Committee is authorized to consider books that have not been nominated and that it considers particularly worthy of consideration. Please note that authors are not eligible to nominate their own books. Please note also that edited books are not eligible for consideration. The Society especially welcomes nominations of scholarly works by female- and male-identifying scholars.

Nominations may be made via e-mail to bookprize@icon-society.org with the following subject line: Book Prize ATTN: Chair of the Book Prize Committee. Nominations must include a justification of 400-500 words explaining the basis for the nomination.

The deadline for the submission of nominations is January 31, 2020.

Please note that the nominators must send (or make arrangements with the publisher to send) one hardcopy for each member of the Book Prize Committee no later than February 29, 2020 directly to each of the members of the committee. Addresses will be provided after nomination. E-Books or scans can substitute hardcopies with the approval of the Chair. Failure to deliver the required number of hardcopies or substitutes will lead to non-consideration of the proposal.

The Call for Nominations for the ICON·S Book Prize can be downloaded here (PDF).

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Published on January 22, 2020
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ICON’s Latest Issue: Table of Contents

Volume 17 Issue 4

Table of Contents

Editorial

Honor Roll of Reviewers 2019

Honoring Jürgen Habermas

Seyla Benhabib, For Jürgen Habermas on his 90th birthday

Jean L. Cohen, My/our debt to Habermas

Oliver Gerstenberg, Radical democracy and the rule of law: Reflections on J. Habermas’s legal philosophy

Frank I. Michelman, Legitimacy and moral support

Cheryl Misak, Habermas’s place in the history of pragmatism

Vlad Perju, Supranational states in the postnational constellation

Michel Rosenfeld, Habermas at 90: A personal and professional tribute

Articles

Kai Möller, Justifying the culture of justification

Sergio Verdugo The fall of the Constitution’s political insurance: How the Morales regime eliminated the insurance of the 2009 Bolivian Constitution

Critical Review of Governance

Tarunabh Khaitan and Jane Calderwood Norton, The right to freedom of religion and the right against religious discrimination: Theoretical distinctions

Farrah Ahmed, Richard Albert and Adam Perry, Enforcing constitutional conventions

Symposium: New Dominium Constitutionalism

Mara Malagodi, Luke McDonagh and Thomas Poole, New Dominion constitutionalism at the twilight of the British Empire: An introduction

Peter C. Oliver, “Dominion status:” History, framework, and context

Luke McDonagh, Losing Ireland, losing the Empire: Dominion status and the Irish Constitutions of 1922 and 1937

Rohit De, Between midnight and republic: Theory and practice of India’s Dominion status

Mara Malagodi, Dominion status and the origins of authoritarian constitutionalism in Pakistan

Rehan Abeyratne, Uncertain sovereignty: Ceylon as a Dominion, 1948–1972

Mara Malagodi, Luke McDonagh and Thomas Poole,  The Dominion model of transitional constitutionalism

ICON: Debate!

Joseph H. H. Weiler, A nation of nations?

Antonio Bar, A nation of nations?: A reply to Joseph H. H. Weiler

Hèctor López Bofill, A nation of nations?: A reply to Joseph H. H. Weiler

Review Essays

Itamar Mann, Zionism and human rights. Review of James Loeffler, Rooted Cosmopolitans: Jews and Human Rights in the Twentieth Century; Michael Sfard. The Wall and the Gate: Israel, Palestine, and the Legal Battle of Human Rights; Gideon Sapir. The Israeli Constitution: From Evolution to Revolution

Katalin Kelemen, Constitutional reasoning: A flourishing field of research in comparative law. Review of  András Jakab. European Constitutional Language; András Jakab, Arthur Dyevre, & Giulio Itzcovich (eds.). Comparative Constitutional Reasoning

Book Reviews

Anine Kierulf. Judicial Review in Norway—A Bicentennial Debate (Jaakko Husa)

Eric C. Ip. Hybrid Constitutionalism: The Politics of Constitutional Review in the Chinese Special Administrative Regions (Julius Yam)

Katharine G. Young, ed. The Future of Economic and Social Rights (Ingrid Leijten)

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Published on January 21, 2020
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What’s New in Public Law


Chiara Graziani, Ph.D. Candidate and Research Fellow in Constitutional Law, University of Genoa (Italy)

In this weekly feature, I-CONnect publishes a curated reading list of developments in public law. “Developments” may include a selection of links to news, high court decisions, new or recent scholarly books and articles, and blog posts from around the public law blogosphere.

To submit relevant developments for our weekly feature on “What’s New in Public Law,” please email contact.iconnect@gmail.com.

Developments in Constitutional Courts

  1. The Italian Constitutional Court rejected a request by the League party to partially repeal the electoral law, changing the voting system into a first-past-the-post.
  2. The German Federal Constitutional Court held that completely excluding non-marital families from stepchild adoption is unconstitutional.  
  3. The European Court of Human Rights ruled that the United Kingdom did not breach Article 6 of the European Convention on Human Rights by holding a trial behind closed doors for national security reasons.
  4. The German Federal Constitutional Court held a hearing on surveillance law.
  5. The Slovenian Constitutional Court will decide whether or not a law requiring the Slovenian central bank to cover any loss to investors arising from the 2013 rescue of Slovenian banks breaches the Slovenian Constitution.
  6. The Supreme Court of Canada rejected a bid by British Columbia to regulate oil pipeline.
  7. The US Supreme Court refused to hear Sudan’s request to limit damages over the embassy’s bombing in 1998.

In the News

  1. The US Senate formally opened the impeachment trial of President Donald Trump.
  2. The Court of Appeal of Turin (Italy) ruled that there is a causal link between the use of mobile phones and head cancer.
  3. The European Commission asked the European Court of Justice to suspend the functioning of the Polish Supreme Court’s Disciplinary Chamber.
  4. The Russian Parliament approved President Vladimir Putin’s nomination for a new Prime Minister.
  5. The German defence minister said that the European Union should offer the United Kingdom “privileged third-party status” in defence and foreign policy cooperation after Brexit.
  6. The US and China signed a preliminary trade agreement on tariffs.

New Scholarship

  1. Francesco Biagi, European Constitutional Courts and Transitions to Democracy (2020) (examining the role of three generations of European constitutional courts in the transitions to democracy that took place in Europe in the twentieth century).
  2. Jacco Bomhoff, The Double-Facing Constitution (2020) (exploring some of the many ways in which constitutional orders engage with, and are shaped by, their exteriors)
  3. Pau Bossacoma Busquets, Morality and Legality of Secession (2020) (exploring explores secession from three different perspectives: political philosophy, international law and constitutional law)
  4. Jody Heymann, Aleta Sprague, Amy Raub, Advancing Equality: How Constitutional Rights Can Make e Difference Worldwide (2020) (comparing the constitutions of 193 UN member states to assess which protect equal rights for its citizens irrespective of their differences, including gender, sexual orientation, income, and disability)
  5. Son Ngoc Bui, Politics of Unconstitutional Constitutional Amendments: The Case of Thailand (2020) (arguing that the question constitutional unamendability is a part of constitutional politics, exemplified by Thailand’s Constitutional Court Decision No. 15–18/2556, which struck down a proposal for a constitutional amendment calling for direct senatorial elections)
  6. Christophe Paulussen, Martin Scheinin (eds.), Human Dignity and Human Security in Times of Terrorism (2020) (collecting essays from several scholars examining how human dignity and human security can be secured and how law can constitute a source of trust at a time when Europe and the rest of the world continue to be plagued by terrorism)
  7. Vijayashri Sripati, Constitution-Making under UN Auspices (2020) (examining the role of the United Nations and of its predecessor, the League of Nations, in giving constitutional assistance to states drafting their constitutions)
  8. Timothy Zick, The First Amendment in the Trump Era (2020) (connecting present concerns related to the First Amendment to episodes that took place throughout the history of the US)

Call for Papers and Announcements

  1. The University of Salzburg is seeking two post-docs in Comparative Constitutional Law and Political Sciences. Submissions are open until January 29, 2020.
  2. The IACL research group on freedom of speech invites submissions for the conference “Free Speech in the 21st Century,” to be held in Ljubljana, Slovenia, on July 3-4, 2020. Submissions are accepted until January 31, 2020.
  3. The European Central Bank is looking for established scholars or promising early-career researchers for up to six legal research scholarships to be awarded in 2020. The deadline for applications is February 3, 2020.
  4. The Berkeley Center for Law and Technology will host a conference on “The Roles of Technology Expertise in Law and Policy,” on February 27-28, 2020.
  5. Columbia Law School invites submissions for the 2020 work-in-progress Workshop on Comparative Constitutional Law. Abstracts must be submitted no later than March 1, 2020.
  6. The International Society of Public Law (ICON-S) invites submissions for its 2020 Annual Conference, to be held in Wroclaw, Poland, on July 9-11, 2020. The deadline is March 1, 2020.

Elsewhere Online

  1. Mark Geddes, Dramas at Westminster: Select Committees and the Quest for Accountability, Constitution Unit Blog
  2. Ignasi Guardans, The Case of Mr. Junqueras is a Case of Respect of the Rule of Law, Verfassungsblog
  3. Niel Kirst, Gun Control in the EU: the CJEU’s Decision on the Legality of the Revised European Firearms Directive, EU Law Analysis  
  4. Christopher Kuner, International data transfers, standard contractual clauses, and the Privacy Shield: the AG Opinion in Schrems II, EU Law Blog
  5. Sándor Lénárd, The role of popular movements and charismatic leaders in American constitutionalism – conversation with Professor Bruce Ackerman, Mandiner
  6. Hans-Martien ten Napel, A Natural Law Basis for Human Rights?, Canopy Forum
  7. Jack Simson Caird, The European Union (Withdrawal Agreement) Bill and the Rule of Law, UKCLA Blog
  8. Benjamin Wittes, Thoughts on the Horowitz Report, Part III: The FISA Findings, Lawfare
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Published on January 20, 2020
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Finding a Panel at 2020 ICON-S Annual Conference


–The Editors

Many of our readers are happily planning to attend the 2020 Annual Conference of the International Society of Public Law, to be held at the University of Wrocław in Poland on July 9-11, 2020.

For those attendees who wish to propose a fully-formed panel but are unable readily to identify others who are working on similar research questions, we suggest try to find each other on Twitter by tweeting @ICON___S and using the conference hashtag #iconswroclaw.

Attendees on Twitter may then monitor this hashtag and help one-another find scholars in similar research fields.

We wish all attendees well, and we look forward to seeing you in July!

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Published on January 16, 2020
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Public Law and Technology: Automating Welfare, Outsourcing the State

Sofia Ranchordas, University of Groningen

[Editor’s note: This is one of our biweekly I-CONnect columns. For more information about our four columnists for 2020, please click here. In 2020, Professor Ranchordas will blog about public law and technology, sharing some insights from her recent scholarship on digital exclusion as well as recent developments in this emerging subfield of law. Her scholarship lies at the intersection of public law and technology and it seeks to understand how digital technology is reshaping public values and challenging fundamental rights.]

In October 2019, the newspaper The Guardian dedicated a full week to the “automation of poverty,” analyzing controversial governmental practices throughout the world that involve employing technology not only to determine welfare eligibility but also to closely monitor welfare recipients. The use of digital technology and other surveillance techniques to prevent welfare fraud had also been criticized months earlier by the UN Rapporteur on Extreme Poverty and Human rights, as well as in recent literature on data-driven social security. This blogpost continues this discussion, identifying some of the legal problems of automating welfare services, particularly when this automation involves private actors.

In the series “Automating Poverty,” The Guardian reported, for example, that in India, an identification biometric system now determines access to food stamps, pensions, and medical care to reduce the risk of fraud. Glitches in this system have nonetheless proven to be difficult to solve in a timely manner, with lethal consequences as a result. In the Netherlands, public bodies have succeeded at automating numerous social security services in the last years. A particularly controversial project in this context is SyRI, a risk assessment system developed by the Dutch Ministry of Social Affairs, which predicts an individual’s probability of committing benefits fraud by analyzing large pools of personal data collected by several government agencies. When someone is ranked as ‘high-risk,’ public institutions are notified to start an investigation. While SyRI has not been particularly effective in detecting fraud, it has greatly contributed to increasing the stigma that accompanies poverty and welfare, as this system has primarily targeted low-income neighborhoods and minorities. Last year, a number of national human-rights and privacy associations and celebrities started a lawsuit against the Dutch state arguing, among other things, that this system is a disproportionate tool to protect the welfare state and violates Article 8 of the European Convention of Human Rights (the right to privacy). The District Court of The Hague is expected to deliver its much awaited decision later this month.

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Published on January 15, 2020
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What’s New in Public Law


–Susan Achury, Miami University

In this weekly feature, I-CONnect publishes a curated reading list of developments in public law. “Developments” may include a selection of links to news, high court decisions, new or recent scholarly books and articles, and blog posts from around the public law blogosphere.

To submit relevant developments for our weekly feature on “What’s New in Public Law,” please email contact.iconnect@gmail.com.

Developments in Constitutional Courts

  1. The Turkish Constitutional Court ruled protecting journalist rights from the penalization of criticism against politics.  
  2. The Canadian Supreme Court sets a revised framework for judicial review of administrative decisions in an immigration case, Vavilov.
  3. Members of the US Congress urged the Supreme Court Thursday to reconsider, if not overrule, the 1973 Roe v. Wade decision legalizing abortion nationwide.
  4. Colombia’s Constitutional Court recognized victims of sexual violence within ranks of the FARC.
  5. The US Court of Appeals for the Fifth Circuit released $3.6 billion for the border wall.
  6. The Peruvian Constitutional Tribunal recognized that freedom of expression protects workers from complaining about the company.
  7. The President of the European Court of Justice (ECJ) warned Poland over the overhaul of the judiciary.
  8. The Spanish Supreme Court prevents convicted Catalan independence leader from taking a seat in EU parliament

In the News

  1. Colombia’s former Constitutional Court president sentenced to prison over corruption.
  2. In Peru, a prosecutor asked for 12 years in jail for Kenji Fujimori in case of alleged vote purchase.
  3. Chile’s President signed off on a referendum to be held on a new constitution.
  4. The Peruvian Constitutional Tribunal published a proposal to reject lawsuit against the dissolution of Congress.
  5. Venezuela has two presidents: Maduro and Guaidó.
  6. US House of Representatives voted to limit further military actions against Iran.
  7. UK House of Commons passed Brexit deal.
  8. Singapore’s opposition party made the first legal challenge to fake news law.

New Scholarship

  1. Maartje De Visser, Non-Judicial Constitutional Interpretation: The Netherlands (forthcoming in 2020) (showing how executive and non-partisan bodies exercise their responsibility for evaluating the constitutionality of legislation). 
  2. Yonatan Fessha and Karl Kössler, Federalism and the Courts in Africa Design and Impact in Comparative Perspective (forthcoming in 2020)(examining the design and impact of courts in African federal systems from a comparative perspective)
  3. Francesco Biagi, European Constitutional Courts and Transitions to Democracy, Analisi e Diritto (2020) (examining the role of three generations of European constitutional courts in the transitions to democracy that took place in Europe in the twentieth century)
  4. Samuel R. Bagenstos, Disability and Reproductive Justice, Harvard Law & Policy Review, Vol. 14, 2020, Forthcoming) (examining the legal and societal treatment of fetuses and children with disabilities alongside the legal and societal treatment of parents with disabilities)
  5. Jason NE Varuhas and Shona Wilson Stark (eds.), The Frontiers of Public Law, Hart Publishing (2020) (exploring the frontiers of public law and examining cutting-edge issues at the intersection of public law and international law, indigenous peoples, criminal law and private law and public administration)
  6. Aslan, Volkan, Executive Decree Authority in Turkey Before the Constitutional Amendments of 2017: In Light of the Turkish Constitutional Court’s Retreat (2019) (examining the effects of the recent inflation of executive dominance on the Court’s ability to review emergency decrees)
  7. Ernst Hirsch Ballin, Gerhard van der Schyff and Maarten Stremler (eds.), Judicial Power – Safeguards and Limits in a Democratic Society in European Yearbook of Constitutional Law (2019) (examining the judicial function as a source of power in the contemporary constitutional context)
  8. Matthew Groves, Janina Boughey and Dan Meagher (eds.),  The Legal Protection of Rights in Australia (2019) (showing how influences of a common law heritage, a written constitution, statutory and common law innovations and a strong dose of comparative legal influences have led to the unique patchwork of rights protection in Australia)
  9. Miroslaw Granat and Katarzyna Granat (eds.), The Constitution of Poland: A Contextual Analysis (2019) (examining the institutional choices made in the Polish Constitution 1997, as well as the radical changes, in particular within the judicial branch, introduced by the new governing majority since 2015)

Call for Papers and Announcements

  1. Columbia Law School welcomes submissions for the Fall 2020 Works-in-Progress Workshop: Comparative Constitutional Law in the Global South in New York on October 2nd, 2020.
  2. The Forum for Law and Social Science at the University of Oslo will host the Conference on Empirical Legal Studies–Europe will host 2020 Empirical Legal Studies and has issued a call for paper for the conference on June 11-12, 2020.
  3. The National University of Kyiv-Mohyla Academy (Kyiv, Ukraine) has just issued a call for submissions for Law and Politics Journal  6/2020 issue.
  4. The Central Summer University In cooperation with International IDEA, Friedrich Ebert Stiftung and the African Network of Constitutional Lawyers is offering a course on Constitution Building in Africa in Budapest-Hungary (June 29-July 8 2020).
  5. The Elon Law Review issues a call for papers for the 2020 Symposium – Access to the Ballot on the Eve of the 2020 Election: What Barriers Still Exist? The deadline for abstracts is Feb. 28, 2020.

Elsewhere Online

  1. Adem K Abebe, In the World of Constitution Building in 2019 and 2020 Prospects, ConstitutionNet
  2. Lisa Hilbink and Valentina Salas, Path to a New Constitution in Chile: How the Unthinkable Became the Inescapable, ConstitutionNet
  3. Scott B. MacDonald, Bolsonaro’s first year: Balancing the economy and cultural wars, Global Americans
  4. Tobias Franz and Andrei Gomez, Why is Colombia striking for change?, LSE blog
  5. Scott Hofer and Jason Casellas, Donald Trump has criticized Latino judges, but they are some of the most conservative jurists on the federal bench, LSE blog
  6. Andrei Dragan, The Conseil Constitutionnel’s decision on the European Charter for Regional or Minority Languages – flawed, yet inevitable?, William & Mary Law School’s International and Comparative Law Blog
  7. Pawel Marcisz, Discipline and Punish: New Polish Reforms of the Judiciary, Verfassungsblog
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Published on January 13, 2020
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Invitation to Friends of I-CONnect: 2020 Global Conference on Constitution-Making and Constitutional Change


Richard Albert, William Stamps Farish Professor in Law and Professor of Government, The University of Texas at Austin

Friends of I-CONnect are welcome to attend a major international conference on “Constitution-Making and Constitutional Change,” to be held this coming week on January 17-18, 2020, at the University of Texas at Austin. Attendance is free.

The conference will welcome over 130 scholars from more than 20 countries. There will be a plenary program featuring the constitutionalism faculty at the University of Texas at Austin along with a series of concurrent sessions on all topics of constitution-making and constitutional change. The full program is available here.

This program is organized under the auspices of the International Forum on the Future of Constitutionalism, and sponsored generously by the University of Texas at Austin, the Constitutional Studies Program, and the Institute for Transnational Law.

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Published on January 12, 2020
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Special Announcement: I-CONnect Columnists for 2020

David Landau, Florida State University College of Law

The editors of I-CONnect are pleased to announce our new slate of columnists for 2020: Sofia Ranchordas, Andrea Scoseria Katz, Alexander Hudson, and Yvonne Tew. We are confident that they will provide a diverse and fascinating set of voices, representing a range of regional and substantive areas of focus, for the coming year.

We would also like to give thanks to our outgoing 2019 columnists — Dian A H Shah, William Partlett, Paola Bergallo, and Jill Goldenziel. We are grateful to each of these wonderful scholars for agreeing to serve as columnists last year, and think you will agree that they added an immense amount to the blog.

The format of the columns is the same as in previous years. The goal is to provide ICONnect with regular contributors who have a distinctive voice and unique perspective on public law. Columns, while scholarly in accordance with the tone of the blog and about the same length as a normal blog post, are a bit more “op-ed” in nature than standard posts. Each columnist will produce one column every two months.

Although we expect that many of our readers already know their work, we append brief bios for each of our new columnists below. Please join us in welcoming them to I-CONnect!

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Published on January 11, 2020
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Iran and the Rhetoric of International Law

Jill Goldenziel, Marine Corps University-Command and Staff College

[Editor’s note: This is one of our biweekly I-CONnect columns. Columns, while scholarly in accordance with the tone of the blog and about the same length as a normal blog post, are a bit more “op-ed” in nature than standard posts. For more information about our four columnists for 2019, see here.]

[Professor Goldenziel’s views do not represent those of her University, the U.S. Department of Defense, or any other arm of the U.S. Government.]

Tuesday night, Iran responded to the strike that killed General Qasem Soleimani by sending non-precision missiles to strike a US military base in Iraq. The US military had advance warning of the attack—as Iran likely knew they would–and no lives were lost. On Twitter, Iranian foreign minister Javad Zarif quickly called the strike “. . . proportionate measures in self-defense under Article 51 of UN Charter.” Zarif’s interpretation of international law here is incorrect. However, his quick use of international law to defend Iran’s actions suggests the importance of couching this conflict in legal terms.

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Published on January 9, 2020
Author:          Filed under: Developments