Only Sovereignty? Global Emergencies between Domestic and International Law
with Dr. Rottem Rosenberg-Rubins
College of Law and Business in Ramat-Gan and Tel Aviv University Faculty of Law
(previously fellow at the Minerva Center for the Rule of Law under Extreme Conditions)
Abstract
Emergencies such as the COVID-19 pandemic demonstrate the need for global norms that assist nation-states in preserving democracy amid emergencies, mitigating the threat of a worldwide democratic decline. The lecture will examine the role of international law in providing nation-states with such norms. It will do so, first, by describing three classic models for coping with emergencies in constitutional democracies, arguing that all three are characterized by a “methodological nationalism” that limits them from considering international law norms in their responses to crises and disasters. Second, the lecture will examine international law’s suitability for creating global democratic norms on the level of positive law. It will demonstrate that while international law – particularly International Human Rights Law (IHRL) – may potentially provide nation-states with a legal model for adapting to emergencies, this potential is substantially limited. Three main problems restrict this potential: the weak formal support that democracy as a regime type receives under international law; the fragile democratic and constitutional features of international organizations; and the vagueness and unenforceability of certain IHRL norms designed to constrain state power during emergencies. By giving substantial weight to national sovereignty and leaving much to the discretion of individual nation-states, IHRL mirrors the methodological nationalism of the classic models and reproduces some hazardous tendencies that domestic legal regimes exhibit when coping with emergencies. The lecture will conclude with policy recommendations for addressing these problems.
The lecture is based on the paper:
Rosenberg-Rubins, Rottem, and Barzilai, Gad. “Only Sovereignty? Global Emergencies Between Domestic and International Law.” Cornell Int’l LJ 55 (2022): 139
Dr. Rottem Rosenberg-Rubins is an assistant professor at the College of Law and Business in Ramat-Gan and an adjunct professor at the Tel Aviv University Faculty of Law. She additionally serves as the coordinator of the Israeli public committee for preventing and amending wrongful convictions, headed by former Supreme Court Justice Prof. Yoram Danziger. She is the author of ‘Crimmigration under International Protection: Constructing Criminal Law as Governmentality’ (Routledge, 2023) and has published several articles in leading law reviews.
Rottem was a postdoctoral fellow at the Minerva Center for the Rule of Law under Extreme Conditions between 2019-2021 and continued as a research fellow until May 2023.
Prof. Gad Barzilai (deceased in April, 2023) was a PI at the Center. He was Full Professor of law, political science and international studies, Professor Emeritus at University of Washington, Dean Emeritus of University of Haifa Law Faculty and former Vice Provost and Head of the International School, University of Haifa. His academic degrees and training are from Tel Aviv University, Hebrew University Jerusalem, Yale, and University of Michigan Ann Harbor. He has published 18 authored and edited books and about 170 articles, essays, chapters and conference proceedings in academic top journals and publishing houses on issues of law, society and politics. Several of his books are award winning books. Thus, for example, in his Communities and Law: Politics and Cultures of Legal Identities [University of Michigan Press, 2003, 2005] he paved the way for a new understating of the role of communities in shaping practices in law and towards it. This book was awarded the Best Book Prize by the AIS and was selected to a special conference panel in the Law and Society conference in Chicago (2004). In his Law and Religion [Ashgate, International Series on Law and Society, 2007] he has edited some of the classics on law and religion and made a meaningful contribution to our understanding of this topic. In his Wars, Internal Conflicts and Political Order [SUNY 1996], he has suggested a new way for understanding the construction of political-legal order and disorder in times of national security emergencies. The Hebrew manuscript of this book was awarded the Best Book Award in National Security by the Ben Gurion Foundation. Among others he has published on politics of rights, comparative law, law and political power, law and violence, communities and law, group rights, liberal jurisprudence, national security, democracies and law, and issues concerning Middle East and Israeli politics and law. In his research he is often combining knowledge in law, the social sciences, mainly political science and political sociology, with political theory, theories of jurisprudence, comparative politics and comparative law. He has been trained to use both qualitative and quantitative methodologies. Barzilai was the President of the Association for Israel Studies (2011-2013) and the Founding First Director of the Dan David Prize (1999-2002). He was a Board member of editorial boards in several world leading professional journals.
