Papers by michal saliternik
DOAJ (DOAJ: Directory of Open Access Journals), Jul 31, 2022
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UC Law Journal, 2024
International law is notably reactive in nature. For the most part, international norms and inst... more International law is notably reactive in nature. For the most part, international norms and institutions have been devised in response to previously observed crises and incidents—be they wars, pandemics, environmental disasters, economic breakdowns, or technological advances. This Article challenges the centuries-old reactive and past-oriented approach of international law. It suggests that while the reactive paradigm has facilitated practical solutions to the concrete problems faced by the international community, this paradigm has also led international law to become backward-looking and short-sighted, thereby hindering the discipline from acting in anticipation of long-term problems and developments.
Against this backdrop, this Article calls for a conceptual shift. It argues that the time has come to couple international law’s traditional reactive paradigm with a more proactive, forward-looking approach that is geared toward the future, with a view to preventing risks and realizing opportunities well in advance. Such a shift is particularly critical given that many of the global challenges on the horizon—such as artificial intelligence, synthetic biology, environmental degradation, demographic transformations, or outer space commercialization—are more complex and diffuse than those previously encountered. Moreover, these challenges present themselves in an accelerated global environment where the rapid pace of social and technological change leaves little room for maneuvering when action is due.
The Article begins by recounting the reactive record of international law while illustrating the prevalence of the reactive approach in numerous regulatory fields, including anti-terrorism, public health, refugees, and arms control. Thereafter the Article analyzes the root causes of international law’s reactive paradigm and highlights the paradigm’s limitations. The Article then turns to lay the theoretical foundations for a novel approach to the evolution and functioning of the discipline, called “proactive international law.” It presents the proactive approach’s core elements and identifies ways to mainstream them into the international legal system, thereby making long-term—even if uncertain—problems and advancements a real regulatory priority on the international agenda.
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European Journal of International Law, 2021
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University of Pennsylvania Journal of Constitutional Law, 2019
In recent years, the big data revolution has rapidly expanded from the private to the public sect... more In recent years, the big data revolution has rapidly expanded from the private to the public sector. Today, government authorities at all levels analyze mass amounts of digital data produced by citizens and use it to inform their policy choices in such diverse areas as healthcare, education, transportation, and urban planning. Proponents of this trend assert that it not only yields better policies, but also facilitates political participation by allowing more people to influence governmental decisions at a low cost and with little effort.
This Article argues, however, that the political participation that big data analysis currently enables is flawed in two main respects. First, such participation is usually passive and unintentional, and does not leave room for public deliberation over contested issues. Second, the apparent neutrality of big data may obscure the systematic exclusion of socioeconomically disempowered groups who do not produce digital data that can affect public policy. To explicate these problems, the Article turns to the work of political philosopher Hannah Arendt, especially to her conception of political action and speech and to her idea of the “right to have rights.” It then demonstrates these problems in recent big data initiatives in the fields of healthcare and urban planning.
Finally, the Article asserts that in view of its participatory deficits, big data-based policymaking in its present form may be incompatible with constitutional norms. It argues that under an uncommon yet plausible interpretation, the First Amendment may be understood to establish the positive right of citizens to participate in governmental policymaking in a manner that allows them to express reasoned opinions and engage in public deliberation. It also argues that the Fourteenth Amendment may be understood to establish the right to equal
participation in policymaking of all segments of the population, including socioeconomically disadvantaged groups. The Article explains how exactly these alleged constitutional rights apply to big data analysis and discusses some
measures that government authorities can take to meet their corresponding obligations without giving up the efficiency advantages of big data-based policymaking.
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EJIL:Talk! October 2017
This post discusses the recent plight of Myanmar's Rohingya people and suggests a new approach to... more This post discusses the recent plight of Myanmar's Rohingya people and suggests a new approach to addressing statelessness in Southeast Asia.
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Hastings Law Journal, 2017
When and how should courts protect individual reliance upon unlawful governmental acts? This ques... more When and how should courts protect individual reliance upon unlawful governmental acts? This question arises in various situations in all fields of public law. However, despite its pervasiveness, the problem of “bad reliance” has hardly drawn any scholarly attention. This Article sets out to fill this gap. The article adopts a cross-public law perspective and makes two main normative claims. First, the Article argues that given their duty to promote the rule of law, courts should usually invalidate unlawful governmental acts even if they have induced extensive reliance. However, in cases where reliance upon an unlawful governmental act was essential for the exercise of personal autonomy—understood as the ability of people to control their destiny by pursuing their own life plans—courts should nevertheless consider giving effect to unlawful acts.
Second, the Article argues that when a court decides to protect reliance upon an unlawful governmental act, it should attempt to mitigate the adverse effects that such protection may have on the ex ante incentives of governmental authorities to comply with the law. The Article presents a two-tier strategy that courts can use to achieve this goal. Under this strategy, courts should explicitly acknowledge and condemn unlawful governmental behavior. Thereafter, they should exercise broad discretion with respect to the remedial measures that should be taken to protect reliance upon it. This strategy ensures that governmental authorities will know what the law requires of them and that they will pay a reputational price for violating it. At the same time, it renders the benefits that governmental authorities can gain from such violations uncertain.
Following the normative analysis, the Article turns to examining several doctrines and devices that courts have used to protect bad reliance. This examination shows that some of the rationales and considerations discussed in the Article already find expression in judicial practice, while others offer critical insights into this practice. At the same time, the case law analysis illustrates the problems and risks associated with the protection of bad reliance along the lines prescribed by this Article. The Article argues that while these difficulties should not dissuade courts from protecting bad reliance, they should affect their choice among alternative remedial solutions.
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Vanderbilt Journal of Transnational Law, 2017
This Article identifies a new trend in the adjudication of international boundary disputes and ex... more This Article identifies a new trend in the adjudication of international boundary disputes and examines it from a historical and normative perspective. For many years, the resolution of international land boundary disputes was governed exclusively by the principle of the stability and continuity of boundaries. Under this paradigm, the main role of international adjudicators was to determine the exact location of historical boundary lines that had been set forth in colonial-era treaties or decrees. Once these lines were ascertained, they were strictly enforced, and any attempt to challenge them was dismissed. In recent years, however, international adjudicators have been increasingly inclined to deviate from historical boundaries in order to promote " human-oriented " goals such as the protection of borderland populations or the bolstering of peace efforts. After demonstrating this development in several cases, the Article evaluates its normative implications. For that purpose, the Article turns to Critical Border Studies (CBS), an emerging field within political geography that critically explores the sources, functions, and effects of borders. CBS sheds light on the power asymmetries that underlie the traditional paradigm and points to the need to adopt a more dynamic and equitable approach to boundary delineation. Drawing on CBS insights, as well as on recent boundary jurisprudence, the Article maps out several types of human-oriented considerations that international adjudicators should take into account when deciding boundary disputes and examines ways to balance them with the principle of the stability of boundaries. Beyond its contribution to the study and development of international boundary law, this Article
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International Law in Domestic Courts: Rule of Law Reform in Post-Conflict States (Edda Kristjánsdóttir, Andre Nollkaemper and Cedric Ryngaert eds. ,2012).
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European Journal of International Law, 2016
Peace agreements often harm disempowered groups such as women, ethnic minorities, and the poor, w... more Peace agreements often harm disempowered groups such as women, ethnic minorities, and the poor, who bear the main burden of compromise. This article argues that international law can and should promote a more equitable allocation of the burden of peace by applying to peace negotiations procedural justice requirements of participation, transparency, and reason-giving. Drawing on insights from negotiation literature, public choice analysis, deliberative democracy theory, and social psychology, the article explains that such procedural regulation can enhance the democratic quality of peace agreements and at the same time also improve peace prospects. It also notes, however, that procedural justice may entail serious costs, including delays and the loss of maneuvering space for negotiators. The article argues that a careful design of procedural justice methods and mechanisms can significantly reduce these costs, and makes some concrete proposals to that effect. Finally, the article examines existing international instruments that may introduce procedural justice principles into peace negotiations, and assesses their potential and limitations. All in all, this article shows that despite, and also because of, its exceptional nature, peacemaking should not be left to the exclusive discretion of unaccountable negotiators.
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Vanderbilt Journal of Transnational Law, 2015
Peace agreements can bring about serious injustices. For
example, they may establish oppressive ... more Peace agreements can bring about serious injustices. For
example, they may establish oppressive regimes, provide for the transfer of populations, or allocate natural resources in an inequitable manner. This Article argues that third-party
facilitators―states and international organizations that act as mediators, donors, or peacekeepers―should have a
responsibility to prevent such injustices. While the primary duty to ensure the justice of peace agreements resides with the governments that negotiate and sign them, directing regulation efforts only at those governments may prove insufficient in protecting human rights under the politically constrained circumstances of peacemaking. It is therefore necessary to complement the primary duties of negotiators with the secondary duties of facilitators, who can afford to contemplate long-term justice and sustainability considerations and often have considerable influence on negotiator decisions.
This Article presents a novel theory of sovereign authority
that provides a normative basis for holding facilitators
responsible to help prevent peace-related injustices. In
accordance with this theory, the governments of all the world’s countries should collectively bear the responsibility for ensuring the compatibility of peace agreements with human rights norms. Peace facilitators, however, should be singled out to discharge this collective responsibility in view of their potential contribution to peace injustices and their special ability to prevent them. This Article explores ways to translate facilitator responsibilities into concrete legal obligations. The potential contribution of such obligations to promoting just and sustainable peace is demonstrated through a critical analysis of the treatment of justice issues in past peace negotiations in Bosnia, Sierra Leone, and Afghanistan.
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Papers by michal saliternik
Against this backdrop, this Article calls for a conceptual shift. It argues that the time has come to couple international law’s traditional reactive paradigm with a more proactive, forward-looking approach that is geared toward the future, with a view to preventing risks and realizing opportunities well in advance. Such a shift is particularly critical given that many of the global challenges on the horizon—such as artificial intelligence, synthetic biology, environmental degradation, demographic transformations, or outer space commercialization—are more complex and diffuse than those previously encountered. Moreover, these challenges present themselves in an accelerated global environment where the rapid pace of social and technological change leaves little room for maneuvering when action is due.
The Article begins by recounting the reactive record of international law while illustrating the prevalence of the reactive approach in numerous regulatory fields, including anti-terrorism, public health, refugees, and arms control. Thereafter the Article analyzes the root causes of international law’s reactive paradigm and highlights the paradigm’s limitations. The Article then turns to lay the theoretical foundations for a novel approach to the evolution and functioning of the discipline, called “proactive international law.” It presents the proactive approach’s core elements and identifies ways to mainstream them into the international legal system, thereby making long-term—even if uncertain—problems and advancements a real regulatory priority on the international agenda.
This Article argues, however, that the political participation that big data analysis currently enables is flawed in two main respects. First, such participation is usually passive and unintentional, and does not leave room for public deliberation over contested issues. Second, the apparent neutrality of big data may obscure the systematic exclusion of socioeconomically disempowered groups who do not produce digital data that can affect public policy. To explicate these problems, the Article turns to the work of political philosopher Hannah Arendt, especially to her conception of political action and speech and to her idea of the “right to have rights.” It then demonstrates these problems in recent big data initiatives in the fields of healthcare and urban planning.
Finally, the Article asserts that in view of its participatory deficits, big data-based policymaking in its present form may be incompatible with constitutional norms. It argues that under an uncommon yet plausible interpretation, the First Amendment may be understood to establish the positive right of citizens to participate in governmental policymaking in a manner that allows them to express reasoned opinions and engage in public deliberation. It also argues that the Fourteenth Amendment may be understood to establish the right to equal
participation in policymaking of all segments of the population, including socioeconomically disadvantaged groups. The Article explains how exactly these alleged constitutional rights apply to big data analysis and discusses some
measures that government authorities can take to meet their corresponding obligations without giving up the efficiency advantages of big data-based policymaking.
Second, the Article argues that when a court decides to protect reliance upon an unlawful governmental act, it should attempt to mitigate the adverse effects that such protection may have on the ex ante incentives of governmental authorities to comply with the law. The Article presents a two-tier strategy that courts can use to achieve this goal. Under this strategy, courts should explicitly acknowledge and condemn unlawful governmental behavior. Thereafter, they should exercise broad discretion with respect to the remedial measures that should be taken to protect reliance upon it. This strategy ensures that governmental authorities will know what the law requires of them and that they will pay a reputational price for violating it. At the same time, it renders the benefits that governmental authorities can gain from such violations uncertain.
Following the normative analysis, the Article turns to examining several doctrines and devices that courts have used to protect bad reliance. This examination shows that some of the rationales and considerations discussed in the Article already find expression in judicial practice, while others offer critical insights into this practice. At the same time, the case law analysis illustrates the problems and risks associated with the protection of bad reliance along the lines prescribed by this Article. The Article argues that while these difficulties should not dissuade courts from protecting bad reliance, they should affect their choice among alternative remedial solutions.
example, they may establish oppressive regimes, provide for the transfer of populations, or allocate natural resources in an inequitable manner. This Article argues that third-party
facilitators―states and international organizations that act as mediators, donors, or peacekeepers―should have a
responsibility to prevent such injustices. While the primary duty to ensure the justice of peace agreements resides with the governments that negotiate and sign them, directing regulation efforts only at those governments may prove insufficient in protecting human rights under the politically constrained circumstances of peacemaking. It is therefore necessary to complement the primary duties of negotiators with the secondary duties of facilitators, who can afford to contemplate long-term justice and sustainability considerations and often have considerable influence on negotiator decisions.
This Article presents a novel theory of sovereign authority
that provides a normative basis for holding facilitators
responsible to help prevent peace-related injustices. In
accordance with this theory, the governments of all the world’s countries should collectively bear the responsibility for ensuring the compatibility of peace agreements with human rights norms. Peace facilitators, however, should be singled out to discharge this collective responsibility in view of their potential contribution to peace injustices and their special ability to prevent them. This Article explores ways to translate facilitator responsibilities into concrete legal obligations. The potential contribution of such obligations to promoting just and sustainable peace is demonstrated through a critical analysis of the treatment of justice issues in past peace negotiations in Bosnia, Sierra Leone, and Afghanistan.
Against this backdrop, this Article calls for a conceptual shift. It argues that the time has come to couple international law’s traditional reactive paradigm with a more proactive, forward-looking approach that is geared toward the future, with a view to preventing risks and realizing opportunities well in advance. Such a shift is particularly critical given that many of the global challenges on the horizon—such as artificial intelligence, synthetic biology, environmental degradation, demographic transformations, or outer space commercialization—are more complex and diffuse than those previously encountered. Moreover, these challenges present themselves in an accelerated global environment where the rapid pace of social and technological change leaves little room for maneuvering when action is due.
The Article begins by recounting the reactive record of international law while illustrating the prevalence of the reactive approach in numerous regulatory fields, including anti-terrorism, public health, refugees, and arms control. Thereafter the Article analyzes the root causes of international law’s reactive paradigm and highlights the paradigm’s limitations. The Article then turns to lay the theoretical foundations for a novel approach to the evolution and functioning of the discipline, called “proactive international law.” It presents the proactive approach’s core elements and identifies ways to mainstream them into the international legal system, thereby making long-term—even if uncertain—problems and advancements a real regulatory priority on the international agenda.
This Article argues, however, that the political participation that big data analysis currently enables is flawed in two main respects. First, such participation is usually passive and unintentional, and does not leave room for public deliberation over contested issues. Second, the apparent neutrality of big data may obscure the systematic exclusion of socioeconomically disempowered groups who do not produce digital data that can affect public policy. To explicate these problems, the Article turns to the work of political philosopher Hannah Arendt, especially to her conception of political action and speech and to her idea of the “right to have rights.” It then demonstrates these problems in recent big data initiatives in the fields of healthcare and urban planning.
Finally, the Article asserts that in view of its participatory deficits, big data-based policymaking in its present form may be incompatible with constitutional norms. It argues that under an uncommon yet plausible interpretation, the First Amendment may be understood to establish the positive right of citizens to participate in governmental policymaking in a manner that allows them to express reasoned opinions and engage in public deliberation. It also argues that the Fourteenth Amendment may be understood to establish the right to equal
participation in policymaking of all segments of the population, including socioeconomically disadvantaged groups. The Article explains how exactly these alleged constitutional rights apply to big data analysis and discusses some
measures that government authorities can take to meet their corresponding obligations without giving up the efficiency advantages of big data-based policymaking.
Second, the Article argues that when a court decides to protect reliance upon an unlawful governmental act, it should attempt to mitigate the adverse effects that such protection may have on the ex ante incentives of governmental authorities to comply with the law. The Article presents a two-tier strategy that courts can use to achieve this goal. Under this strategy, courts should explicitly acknowledge and condemn unlawful governmental behavior. Thereafter, they should exercise broad discretion with respect to the remedial measures that should be taken to protect reliance upon it. This strategy ensures that governmental authorities will know what the law requires of them and that they will pay a reputational price for violating it. At the same time, it renders the benefits that governmental authorities can gain from such violations uncertain.
Following the normative analysis, the Article turns to examining several doctrines and devices that courts have used to protect bad reliance. This examination shows that some of the rationales and considerations discussed in the Article already find expression in judicial practice, while others offer critical insights into this practice. At the same time, the case law analysis illustrates the problems and risks associated with the protection of bad reliance along the lines prescribed by this Article. The Article argues that while these difficulties should not dissuade courts from protecting bad reliance, they should affect their choice among alternative remedial solutions.
example, they may establish oppressive regimes, provide for the transfer of populations, or allocate natural resources in an inequitable manner. This Article argues that third-party
facilitators―states and international organizations that act as mediators, donors, or peacekeepers―should have a
responsibility to prevent such injustices. While the primary duty to ensure the justice of peace agreements resides with the governments that negotiate and sign them, directing regulation efforts only at those governments may prove insufficient in protecting human rights under the politically constrained circumstances of peacemaking. It is therefore necessary to complement the primary duties of negotiators with the secondary duties of facilitators, who can afford to contemplate long-term justice and sustainability considerations and often have considerable influence on negotiator decisions.
This Article presents a novel theory of sovereign authority
that provides a normative basis for holding facilitators
responsible to help prevent peace-related injustices. In
accordance with this theory, the governments of all the world’s countries should collectively bear the responsibility for ensuring the compatibility of peace agreements with human rights norms. Peace facilitators, however, should be singled out to discharge this collective responsibility in view of their potential contribution to peace injustices and their special ability to prevent them. This Article explores ways to translate facilitator responsibilities into concrete legal obligations. The potential contribution of such obligations to promoting just and sustainable peace is demonstrated through a critical analysis of the treatment of justice issues in past peace negotiations in Bosnia, Sierra Leone, and Afghanistan.