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25 Nov Second Thoughts on First Strikes: A Reply to Heller
...first use of military force by one against the other. In my view, an “armed conflict” between a State and an organized armed group begins with the first military operation by one against the other. Nothing in the text of APII 1(1) or APII 1(2) precludes this symmetrical approach. As Kevin notes, I believe that we should interpret the term “armed conflict” in light of the object and purpose of IHL, namely to protect human beings against dangers arising from military operations. In general, we interpret all the terms of...
07 Apr The Growing Imperative to Recognize and Codify Gender Apartheid: Demonstrating the Need and Responding to Critics (Part II)
and challenges to the campaign and the concept have emerged. This section considers the most often repeated issues raised by states, academics, and other experts and aims to provide context and responses. Gender Apartheid is a New Term or Concept Some have criticized the concept as a “relatively new expression” and attributed its popularization to international academics or organizations. As detailed above, the term dates back to the 1990s and originates from Afghan and Iranian women. For example, in her article, Professor Bennoune not only comprehensively assessed the ongoing gender...
13 Nov The Spanish Rapper Extradition Case Before a Belgian Court Fires up the Legal Discussion on Freedom of Expression and Other Fundamental Rights
...States of the European Union has sharpened the discussion about freedom of expression and an overly broad interpretation of the term “terrorism”. In 2012, Mallorcan rapper Valtònyc, real name Josep Arenas Beltran, was arrested at the age of 18 for the content of some rap songs he posted on YouTube and sang during performances. He was released again awaiting prosecution, and five years later, he was sentenced to 3,5 years imprisonment for these lyrics. In his songs he mocked the Spanish Royal Family, he referred to violent Grapo and Eta...28 Oct The International Law Commission’s 65th Session (2013)
identified in Article 31. Since, in some circumstances, a treaty contains an open-textured term which might be understood to encompass different meanings over time, draft conclusion 3 notes that subsequent agreements and subsequent practice “may assist in determining whether or not the presumed intention of the parties upon the conclusion of the treaty was to give a term used a meaning which is capable of evolving over time.” Draft conclusion 4 defines what is meant by subsequent agreements and subsequent practice using the language of Article 31(3), and notes that...04 May Is Missouri v. Holland on a Near-Term Collision Course with the Supreme Court?
...Thus, there is no need to address the commerce power or cases limiting congressional power under the commerce power. Martin Holterman Indeed. The fact that the Treaty-making power is expressly given to the Federal government alone is key. Given that only the Feds make treaties, they have to have some way of keeping their promises. Since Medellin v. Texas closed the door on everything other than implementing statutes, it's implementing statutes that's left. If the states don't like it, they should muster up 34 senators to vote down the treaty....
15 Mar Why Creating a Special Tribunal for Aggression Against Ukraine is the Best Available Option: A Reply to Kevin Jon Heller and Other Critics
...court on the basis that he or she enjoys immunity under international law. While it has attracted criticism, the judgment of the ICJ in the Arrest Warrant Case is a strong statement that Heads of State, diplomatic representatives, ministers of foreign affairs and (by implication) Heads of Government, enjoy immunity from criminal proceedings in foreign domestic jurisdictions during their term in office for both ‘official’ and ‘private’ acts, committed during, or prior to, that term in office, even when accused of serious international crimes (at [54]-[55]). According to the majority,...21 May Common Law Immunity for Foreign Government Officers
...the nation’s long-term interest in promoting universal adherence to fundamental human rights norms. There are compelling separation-of-powers reasons why the courts should act as a check on this unfortunate, short-sighted bias of the State Department bureaucracy. The United States needs one branch of the federal government to adopt a long-term view, rather than a short-term view. The courts are well positioned to serve this function because they are insulated from short-term political pressures. The final objection to the proposed Harlow rule is that it is inconsistent with customary international law....
08 Nov The Application of the Principle of Precautions within the Context of Northern Gaza: A Reminder
military targets and civilian infrastructures can sometimes result in unintended damage, even with the utmost care. In such instances, the obligation adheres to what is deemed ‘feasible’ under the given circumstances, a term that will be elaborated on in the subsequent paragraph. The term ‘feasible’ introduces ambiguity, offering potential leeway for the attacking party to exploit the term by justifying measures based on contextual considerations. Nevertheless, any such interpretation can be countered by reverting to the primary objective of the provision, which is ‘to spare the civilian population, civilians, and...
22 Jul Space Law at the Crossroads: Contextualizing the Artemis Accords and the Space Resources Executive Order
...Intergovernmental Agreement (ISS-IGA). The moniker comes from NASA’s mission to land “the first woman and the next man” on the Moon by 2024. More recently, NASA has released its constitutive principles (Artemis Principles). The latest move follows President Trump’s Executive Order (EO) promulgated in April 2020 which recapitulates the US policy on commercial recovery and use of space resources. The Order clearly stated that the US does not view outer space as “a global commons”—a term used to signify extraterritorial spaces with common-pool resources. The Accord is consistent with the...
12 Apr The Apartheid Reports: A Paradigm Shift on Israel/Palestine (Part I)
...does not exhaust the various aspects of apartheid. Well beyond the legal definitions, apartheid is also a political regime and a historical phenomenon. The growing public and academic debate about it is therefore much broader, involving political scientists, historians, sociologists, geographers and researchers from other fields in the increasing academic and public research and debate. Even the international conventions include two framings of apartheid: as a political regime and as an international crime. ICERD relates to governmental policies and hence a regime, and the Apartheid Convention and the Rome Statute...