1. Your legal and academic interests—public international law, comparative constitutional law, international legal theory, international human rights law—are all international in scope. What drew you towards international law as opposed to domestic law?
First let me start with a short side note: While it is certainly true that my current fields of research are all rather international in their focus, it was actually German constitutional and administrative law that aroused my interest for pursuing an academic path in the legal discipline. Very early on, however, I began to realize that a deeper understanding of law requires looking beyond national borders. This is partly due to the intricacies of our “globalized” world today, but also to a large extent inherent in the subject matter itself: law as a social phenomenon knows no national borders. My particular passion for public international law is a result of the fascination that fundamental problems of the legal disciple exert on me. Dealing academically with the international legal order—which is still archaic in many respects—with all its deficiencies and its fragmented structure demands a constant reflection on questions like “What is law,” “How is it created,” and “How can it be enforced?” This necessity takes me frequently to the borderline of the legal discipline which is challenging and yet at the same time intellectually beyond stimulating. This is certainly one of the aspects that has driven my scholarly attention towards the international plane.
2. Could you tell us more about your postdoctoral research thesis, “The Unwilling or Unable State as a Challenge to International Law”? What is the nature of the issue you investigated? What were the findings of your research? What role does this problem play in current international politics?
One of the most ardent challenges of contemporary international relations is non-state actors conducting terrorist attacks within the territory of states that fail to suppress such endeavors. The most notable example is, of course, ISIS terrorist cells acting from Syrian territory. Several states, most prominently the USA, justify military actions against such terrorist actors even if the states hosting them have not consented to such “defensive”—in the widest sense of the word—operations by claiming (let me cite here a statement by the Permanent Representative of the United States of America to the United Nations from 2014) that “[s]tates must be able to defend themselves, in accordance with the inherent right of individual and collective self-defence […] when […] the government of the State where the threat is located is unwilling or unable to prevent the use of its territory for such attacks.”
My postdoctoral research project on the “Unwilling or Unable State as a Challenge to International Law”–funded by the Fritz Thyssen Foundation as well as the Daimler and Benz Foundation–takes as its starting point exactly this employment of the notion of the “unwilling or unable state” permeating the contemporary international legal discourse on the right to self-defence as enshrined in Art. 51 of the UN Charter. However, this is not the only context in which it is used. Other examples include the rules governing the complementary jurisdiction of the International Criminal Court and the discourse on the so-called “Responsibility to Protect.”
While my research project started off as a normative contextualization, evaluation, and critical deconstruction of this controversial concept and the debates surrounding it, the research took a more fundamental turn in the course of my analytical encounter with this notion. Some of the research questions guiding my research agenda as of now are: What is a state’s (un)willingness? What constitutes its (in)capacity? What are the peculiarities of the notion of an “unwilling or unable state,” and to what extent does this concept fit into the scheme of the current system of international rules? To what extent is the unwillingness of a state interrelated with its incapacity? Which legal implications for the “unwilling” state flow from the non-fulfillment of international legal obligations, which for the merely “incapable” state, and which duties and rights of other international legal actors correlate with the non-fulfillment of international obligations? To what extent is the capacity to act normatively interrelated with an obligation to act? To what extent do international legal rules—irrespective of the sovereign equality of states that stands at the root of the international legal order—address and incorporate discrepancies in states’ capacities, both on the primary level of the normative command itself and on the secondary level of state responsibility? Do inconsistencies surface? To what extent are the answers that international law in its present shape has to offer with regard to “unwilling” or “unable” states inadequate and/or insufficient?
My research has already engendered numerous interesting preliminary findings which still need to be systematized and evaluated with greater scrutiny. One of the major insights which I have gained is that international legal rules do take into account discrepancies in state capacities in various but distinct ways, at least in some substantive issue areas (irrespective of the sovereign equality of states). Their responsiveness to different state capacities is, however, not coherent and – as far as I can say from my current vantage point – insufficient when the realities of international relations are taken into account. Furthermore, I have detected a lacuna in legal scholarship: Most scholars focus either on the fully functional state or the failed state, but refrain from directing their attention to the continuum of different state capacities as a legal problem.
3. How has your research in the fields of constitutional law and human rights law impacted your reaction to the rise of “strongman” leaders with an autocratic style of governing (e.g. Trump in the U.S., Erdoğan in Turkey, Duda in Poland, Orbán in Hungary)? What do you make of the rise of right-wing nationalism, as reflected in recent elections in Austria and Germany?
All of these challenging questions would deserve to be treated in several elaborate essays, so allow me to limit myself to some remarks and observations particularly with regard to the constitutional crisis that we are currently witnessing in Poland. Poland is of particular importance to me. To a large extent, this is due to the fact that I was born in Poland and have remained closely connected with the country thanks to family bonds, as well as friendships with many dear colleagues working and researching at various Polish universities. Naturally my academic background in constitutional and human rights law, as well as European law, has made me particularly sensitive to the Polish developments, but also to the challenges of an effective EU response to this crisis. What we see here is an unprecedented attack on the rule of law conducted by the governing party Prawo i Sprawiedliwość [Law and Justice] in the name of the (simple) majority of its supporting voters. The Constitutional Tribunal has been effectively disempowered contra constitutionem, the judiciary reshaped in a way that severely endangers judicial independence. It is, however, important to note that many representatives of the PiS government justify the unconstitutional legislative moves in question by referring to the will of the “true sovereign” thereby employing “constitutional” vocabulary even if in a very distorted way. I think we as legal scholars – since we will never be able to remain normatively neutral – should use these tragic developments as an opportunity to refine and reflect on the ways in which we communicate certain fundamental constitutional principles and institutions, as well as on how we engage with populist arguments. Let us become clearer on our “narratives”: Why is it worthwhile to have a Constitutional Tribunal in place even if its judgments interfere with the government’s policy? Why can the constitution not be amended by simple majority? Why do we need independent judges?
4. In Germany, you are a Senior Research Fellow at the Max Planck Institute for Comparative Public Law and International Law. Could you tell us a bit more about the work of this institution? How did you become affiliated with it?
This remarkable institute was founded in 1924 in Berlin and reestablished in 1949 by the Max Planck Society as the Max Planck Institute for Comparative Public Law and International Law in Heidelberg. Currently it is led by Anne Peters and Armin von Bogdandy and unites under its roof a multitude of doctoral and postdoctoral researchers as well as visiting scholars from around the world with various academic backgrounds. At its core stands fundamental and world-class research in public international law, European Union law, as well as comparative constitutional and administrative law. The Institute’s researchers analyze real-world problems from the perspective of legal doctrine and theory. They examine, systematize, and compare, thereby also contributing to the tailoring of effective legal answers to current problems. The Institute also advises institutions, be it on the domestic, supranational, or international level.
While I started off my academic career at the Bucerius Law School in Hamburg, it became apparent to me that only an institutional change would allow me to grow as a legal scholar. Since my postdoctoral research endeavors took me to the sphere of international public law and comparative constitutional law, the Max Planck Institute appeared to be a perfect fit for my habilitation phase. Hence, I was thrilled when Anne Peters invited me to join her team as a Senior Research Fellow. Since then I have been on an incredible academic journey. The Max Planck Institute is truly a highly recommendable academic surrounding.
5. In addition to your academic career, you have also been a judicial clerk in Hamburg for the Civil and Criminal Court of Appeals, as well as the Administrative Court. How have these practical experiences informed your academic engagement with Law?
Indeed, the practical experiences connected with my work as a clerk in German courts, but also as an attorney in international law firms, have proven to be very valuable also for my academic work and research. They have made me very sensitive towards the disparities between the “law in the books” and the “law in action.” Furthermore, they constantly remind me of the importance of focusing on the practical implications of legal doctrine. Legal research has to matter: this is one of my scholarly mantras.
6. You are now in New York as a DAAD visiting fellow at Deutsches Haus at NYU and Postdoctoral Global Fellow at NYU Law School. What are you hoping to achieve during your time in New York and the U.S.? What will you be speaking about in your talk at Deutsches Haus at NYU on November 20th?
The main reason for my research stay at the NYU School of Law as a Hauser Global Fellow and a DAAD visiting fellow has been my desire to reflect on and contest the current conceptual set-up of my research project. Being rooted in the rather conservative German legal academia, I came here in order to reassess my self-understanding as a legal scholar, extend my methodological tool-kit and learn to “think outside the box”. So far my research stay has been immensely fruitful and productive, however, it also led me to a reconceptualization of the monography draft which is still in progress. So I have yet a very long way to go.
In this very exciting phase I have decided to come back to the starting point of it all and focus in my talk at Deutsches Haus on a contextualization and deconstruction of the “unwilling or unable notion” which has recently experienced a renaissance in international law and international relations discourse. My talk shall sketch how the notion of the “unwilling or unable state” is employed within the international legal and political discourse, depict what normative implications are attributed to it by the various discourse participants, reflect on the conceptual challenges connected with it, critically assess how it fits into the scheme of existing international legal rules, and highlight its potential dangers.
7. Are there any things other than your work and research that you most look forward to during your residency? Will you take advantage of the cultural scene here in New York?
It is the second time that work has brought me to NY and allowed me to stay for a longer period of time in this city which fascinates and inspires me more than any other. However, this time I am accompanied by my little son Emil who is eight months old and my dear husband. My husband is on parental leave which has allowed me to commence with the Global Fellows Program. Needless to say, I feel more than blessed to have such a supporting spouse. The “New York experience” with a little baby is of course very different than my previous NY adventures. Nevertheless, we take advantages of all the pleasures NY has to offer as best as we can. Luckily, Emil is very “restaurant-compatible” which has made several outstanding dining experiences possible. Furthermore, the weather has been extraordinary so far and our weekends have turned out to be to a large extent “Central Park days.” In November, my mother-in-law will assist us with taking care of Emil and we have already booked tickets for several performances at the MET. I am particularly very excited to enjoy Bellini’s Norma.
Other than that, my residency at NYU has allowed me to meet incredible scholars from around the world who turned out to be even more extraordinary human beings. They impress and inspire me every day. I feel very privileged to have been invited by the NYU.
