The excellent posts by Professors Ku, Golove and Sloss address a central constitutional issue in the law-of-war field: which branch of the U.S. government has the authority to decide what the laws of war require. Below are a few thoughts based on my assessment of the text’s original meaning (for what that may be worth). 1. Ultimate authority on...
Like others, I have followed this week’s entries with fascination. From outside the United States, it is a pleasure to see such a spirited debate conducted in such a fine manner. It is a tribute to John Bellinger that the thoughtful tone that he set at the start has been continued. I wish to take up two points. ...
Just to keep our readers in the loop, we are still expecting John Bellinger to post later tonight or early tomorrow morning a response to some of the comments on his postings from throughout the week. I also understand that John may be kind enough to do even more follow-up responsive blogging next week. So stay tuned. ...
[Opinio Juris welcomes Professor David Golove of New York University School of Law as a guest respondent. Professor Golove's teaching and scholarship is focused on the foreign relations law of the United States and on constituional law.] In his recent post, Julian asks whether the President has domestic constitutional authority to adopt a "new" interpretation of the laws of war. ...
My thanks to Opinio Juris for organizing this remarkable discussion, and to John and all the guest respondents and those commenting for taking part. Opinio Juris is one of the most refreshing blogs around because its bloggers have a wide range of political views, eclectic interests, and strongly held opinion – and yet its discussions are always unfailingly polite,...
[Opinio Juris welcomes Professor David Sloss as a guest respondent. Professor Sloss is an expert on foreign relations law (among other areas) and he teaches at Saint Louis University School of Law. His recent articles can be found here.] I want to thank John Bellinger for his recent posts on this blog. He has presented a very thoughtful and...
John Bellinger’s latest post raises two interesting questions, the first about the function of immunities and the other about the role of the executive branch (specifically, the State Department) in litigation against foreign interests. The immunities rules straightforwardly recognize that what we traditionally regard as core features of judicial competence do not extend, at least not fully, to foreigners. We...
Since readers have no doubt tired of the law of war by now, I would like to change topics and address some of the immunity issues that confront L on a regular basis. Most of you are familiar with the Foreign Sovereign Immunities Act (FSIA), 28 U.S.C. 1330, 1602 et seq., which codified the restrictive theory of the immunity...
This exchange between John Bellinger and our terrific group of guests and commenters has been so fascinating that I hesitate to intervene. But the last few posts have moved me to pose a fundamental domestic U.S. law question to John and our readers. Who has the authority to interpret or re-interpret the laws of war on behalf of...
[Opinio Juris welcomes Professor Ken Anderson as a guest respondent. Professor Anderson teaches at American University's Washington College of Law. He also is a Research Fellow at the Hoover Institution at Stanford University. He regularly blogs at his Ken Anderson's Law of War blog] I am in agreement with John’s characterization of the legal and historical-legal status of...
[Opinio Juris welcomes Professor Michael Ramsey as a guest respondent. He is a professor of law at San Diego School of Law and an expert in foreign relations law.] My thanks to Opinio Juris for setting up this fascinating exchange and for inviting me to participate, and to John Bellinger for taking time to provide such thoughtful posts. As...
John’s most recent post raises the question of the nature of the “bargain” theory, as he puts it, of the Geneva Conventions: In separating lawful and unlawful combatants, the Third Convention creates a basic bargain for those engaged in an international armed conflict. Engage lawfully in combat and, if captured, you will receive the comprehensive treatment protections of the Convention. Ignore...
