2018] NATIONALITY AND DEFINING “THE RIGHT TO HAVE RIGHTS” S893 gists and political theorists. This usurpation of power from States, in contravention of the State consent-based model of international law, is not unique to the nationality context. Indeed, a recently released study of international legal scholarship shows the broadly self-referential nature of scholars’ assertions of the state of customary international law. 250 1. The Legitimacy of an Overstatement of Law Scholars historically have been criticized for overstating the law or for failing to distinguish between their attempts to codify the law and their articulations of progressive developments of law. 251 As early as 1908, notable scholars criticized the rules “ascertained” by their peers as no more than “mere fancies.” 252 Undoubtedly, overstatements of law cast doubt on the impartiality of the academy and the ability of the academy to identify law, as divorced from policy. Moreover, overstatements undercut the State-consent premise atop which international law rests, as scholarly writings formally are a subsidiary means of determining the law and judges on international tribunals often hail from the academy. This is not to say, however, that overstatements are categorically illegitimate. Overstatements can reform rules and regulations, thereby altering State practice, when doing so proves necessary in the interest of, inter alia, human rights. The late Antonio Cassese opined that scholars and international law practitioners must “try to contribute to changing the law in addition to interpreting the existing law.” 253 Even Bruno Simma and Andreas Paulus, writing in defense of positivism, concede that morality “will almost necessarily inform [legal] answers” when the state of the law is otherwise unclear. 254 250. See generally Lianne Boer, “The Greater Part of Jurisconsults”: On Consensus Claims and Their Footnotes in Legal Scholarship, 29 LEIDEN J. INT’L L. 1021 (2016). 251. Aldo Borda, A Formal Approach to Article 38(1)(d) of the ICJ Statute from the Perspective of the International Criminal Courts and Tribunals, 24 EUR. J. INT’L L. 649, 659–60 (2013). 252. See, e.g., Lassa Oppenheim, The Science of International Law: Method, 2 AM. J. INT’L L. 313, 334 (1908). Its Task and 253. ANTONIO CASSESE, FIVE MASTERS OF INTERNATIONAL LAW: CONVERSATIONS WITH R-J DUPUY, E. JIMENEZ DE ARECHAGA, R. JENNINGS, L. HENKIN, AND O. SCHACHTER 143 (2011); see also id. (Judge Richard Jennings questioning whether judges, and not just advocates, “have to be able to distinguish between proposals and what is really law and so on”). 254. Bruno Simma & Andreas Paulus, The Responsibility of Individuals for Human Rights Abuses in Internal Conflicts: A Positivist View, 93 AM. J. INT’L L. 302, 316 (1999) Electronic copy available at: https://ssrn.com/abstract=2954729