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10 Nov The Cyber “Shipwrecked” and the Second Geneva Convention
...establishing whether the crew of a ship disabled by cyber means is in “peril at sea,” and, if so, how to determine if that crew has refrained from engaging in hostilities. Peril at Sea Framing the analysis of whether a ship’s crew disabled through cyber means can be considered in peril is the guidance to read the term shipwreck “as being broad.” (See Updated Commentary, para. 1383). The 2017 commentary reiterates the 1960 commentary exhortation for the term to be “taken in its broadest sense.” (Commentary to Geneva Convention II...
30 Mar Walking on Thin Ice: Balancing Trade and Security Interests at the WTO
...are capable of objective, factual determination and hence ‘operate as limitative qualifying clauses’ tempering the discretion of the Members. The WTO panel in the Russia – Traffic in Transit dispute considered that “the ‘balance’ that was struck by the security exceptions was that Members would have ‘some latitude’ to determine what their essential security interests are, and the necessity of action to protect those interests”. At the same time, it was expected that the “potential abuse of the exceptions would be curtailed by limiting the circumstances in which the exceptions...24 Jun On Calling Things What They Are: Family Separation and Enforced Disappearance of Children
Recently, there’s been many a discussion in the Global North on the semiotics of law. What does it mean to say there was a genocide in Canada or that ICE runs concentration camps. In general, these debates follow a similar pattern: specific groups of people are outraged that scholars and experts would use the correct terminology to describe a policy they support, because it sounds too harsh. The effect of language in how societies approach gross human rights violations is an important aspect of transitional accountability (and the law in...
30 May Gender-based Persecution against Men: the ICC’s Abd-al-Rahman Case
...make a discriminatory intent easier to prove. For instance, in the ICTY’s Popović et al. case,the defendant’s use of the term “balija”, a derogatory word for Muslims, was seen as evidence of an intent to persecute on “political, racial and religious grounds” (para. 713). Similarly, in the Abd-al-Rahman case, the Prosecutor has cited slurs that the perpetrators allegedly hurled at Fur victims, such as “tora bora” (rebels) and “nuba” (a pejorative term for black people) as evidence of an intent to persecute on “political and ethnic grounds.” When it comes...
23 Aug International Investment Law Symposium: Is Foreign Direct Investment a Blessing or a Grift?
...something we observed more broadly within the debate. Scholarship on international investment law (IIL) is split. On one side, we find the operational-instrumental-doctrinal variety that engages with the contours as adumbrated. Many of these contributions take the assumptions about FDI for granted, treating law, political economy, and international relations as separate fields of research. Without being churlish, their role is to evaluate the mechanics of IIL and to propose improvements that will strengthen compliance with the rules as they are. On the other side – so far apart we term...15 Nov MJIL Symposium: A Response to Ilias Bantekas and Jens Ohlin by Darryl Robinson
...on the substance; we are simply using the term ‘vicarious liability’ differently. I use the term to mean liability based only on a relationship, without personal culpability in relation to the crime. On this usage, ‘vicarious liability’ has a negative sense, as it is liability without meeting even the more elastic objective and subjective requirements for accessory liability. It appears that Professor Ohlin uses the term ‘vicarious’ to mean any liability for acts of another, including where culpability can be traced back to the accused (what others might call ‘imputed’...09 Oct LJIL Symposium Vol 25-3: Wording in International Law: A Comment
...of Lawfare, and while the substance of that work appears to me to have been worthwhile, the term itself, to be honest, grates. Actually the use of the term Wordfare here prompted me to finally chase down the etymology of ‘fare’. I’d assumed it was from the French faire – to do – as in ‘to do’-war, but apparently it is rooted in ye olde English, meaning ‘to journey’, as in ‘to go’-to war. Wordfare, ‘to go’ to words, that is, the idea that scholars apply various tactics of wording...25 Jun The CIA and the Public Authority Justification: A Response to Orr
...the Army, Navy, Air Force, Marine Corps, and Coast Guard.” But, is that an exclusive definition of the term? It certainly seems to be! Nothing in the language of sec. 101 suggests that the definition is non-exclusive. After all, the provision uses a restrictive term, “means,” not a non-restrictive term such as “includes.” Black-letter principles of statutory interpretation thus indicate that only the five services qualify as US “armed forces.” Orr then offers what I find his most problematic argument, concerning the interpretation of the AUMF: There is a fairly...
10 Mar Taking Stock of the Proposal to Codify Gender Apartheid in the Crimes against Humanity Convention
...calls to enumerate the crime of gender apartheid. Seven countries (Afghanistan, Australia, Austria, Mexico, the Philippines, Portugal, and Spain) expressed openness to the inclusion of gender apartheid–or at least the proposed elements of the crime–which now makes 12 countries formally on the record as expressing openness to the codification of gender apartheid in the CAHC–not to mention the many more countries that have politically used the term to describe the ongoing deteriorating situation in Afghanistan. The Prep Comm interventions included the Philippines, who underscored how, “on the definition of crimes...