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31 Dec The NDAA: The Good, the Bad, and the Laws of War–Part II
decline to en banc this case to determine the role of international law-of-war principles in interpreting the AUMF because, as the various opinions issued in the case indicate, the panel’s discussion of that question is not necessary to the disposition of the merits.” Judges Brown and Kavanaugh wrote opinions totaling over 100 pages in which they criticized the rest of the court’s treatment of the law-of-war question, and reasserted in even stronger terms their views that the AUMF should not be construed as informed by the laws of war—indeed, that...15 May Channeling Circular Migration
...and out of the United States pursuant to some kind of labor migration agreement with Mexico (or other states) as frequently as makes economic sense for Mexico, the U.S., or immigrants themselves. Or, at some point should we expect migrants to make a permanent commitment to the United States or return to their countries of citizenship? I worry about the civil society implications of migrants using the United States as a kind of economic way station, particularly for prolonged periods of time. Circularity reduces incentives for integration (migrants without long-term...06 Feb Are President Obama’s Assassinations of U.S. Citizens Constitutional?
...get them treated differently in our system). Best, Ben John C. Dehn First, I think the use of the term "assassination" in this context is political hyperbole rather than legal commentary. No serious international legal scholar (or student of history surrounding acts of assassination and use of the term) should call this type of attack an assassination. There is Supreme Court case law supporting the military destruction of American property supporting a public enemy in foreign land without constitutional problems (in the case, denying just compensation). The case was later...06 May Jus Post Bellum Symposium: Contrasting Transitional Justice and Jus Post Bellum
terms deal with complex phenomena and benefit from scholarly interest from disparate fields and traditions, coming closer to a consensus on the definition of these terms is difficult. Since Transitional Justice and jus post bellum will often (but not always) apply simultaneously, it is all the more important to attempt this difficult task—to define both terms clearly and develop them in accordance with contemporary realities. It is important to recognize that multiple maximands will co-exist, rooted in the separate but related traditions, sometimes in tension, but hopefully almost always carried...03 Mar The Crimea, Compliance, and the Constraint of International Law
...the bounds of “self-defense,” when may a state legally intervene, what is “self-determination,” and so on—plays an essential role in defining expectations of how states and others will act. How they use these terms inform other actors as to which arguments may or may not be made legitimately. This is especially powerful in international law. Regardless as to whether Russia (or any other state) uses legal rhetoric, but especially when it does, it becomes bound-up by the expectation of legal compliance in general. Invoke the law, get bound by the...22 Feb Tony Arend’s Legal Analysis of Kosovo’s Declaration and Defining a “People”
...themselves to be a people, typically based on some perceived common characteristics. These characteristices include such things as: language, culture, religion, race, ethnicity, and history. Note: what I am suggesting here is that a people is a constructed identity. Defining “people” for pursposes of self-determination has been a tricky task. In the phrase of the Canadian Supreme Court from the Secession of Quebec opinion, the meaning of “peoples” is “somewhat uncertain.” At various points in international legal history, the term “people” has been used to signify citizens of a nation-state,...03 Oct Catching Up With the Critics
...this question with respect to its long-term counterterrorism planning. In part because there is some disagreement on the question within the bureaucracy, in part because it is not necessary to resolve this longer term question in order to address the nearer term goal of closing Guantanamo (more on that next), my impression is the Administration has elected to continue discussing the matter, or at least leave off decision for another day. Whatever the reason, it’s clearly good news. For reasons former federal prosecutors and many others have explained in deep...
09 Jan The Occupied Palestinian Territories and the Responsibility to Protect (Part 2)
...the Fourth Geneva Convention (1949) , the Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Fourth Geneva Convention), 75 UNTS 287, the Hague regulations, the Charter of the United Nations, and customary international law including the prohibition on the acquisition of territory by force, and the right of peoples to self-determination, as explicitly recognized in the UN Charter (Article 1 Para.2), as well as in Article 1, common to both the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic,...05 Jul The Arms Treaty Negotiations and the Problems of Consensus for a Hegemonic Player
OJ’s esteemed commenter Martin Holterman asks in the comments to my earlier post about the Arms Treaty negotiation underway in New York what the point of negotiating a treaty is, if you assert in advance (and indeed attach to the treaty) that there cannot be any circumstances in which you might violate it. He asks this with reference to a letter sent Monday from Congressional lawmakers (some 130 of them) to the Obama administration. The short answer is that if those are your objections, then you really ought to stay...