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16 Feb

John Bellinger makes a solid observation in the NYT on the Obama Administration’s general approach to international law. The bottom line: Obama is basically the same as Bush (at least during the second term) on international law. Last month marked the one-year anniversary of President Obama’s first signature foreign policy initiative: the issuance of three executive orders ordering the closure of the detention facility at Guantánamo Bay, the suspension of the C.I.A. interrogation program, and the review of all U.S. government detention policies and legal positions. The orders met with...
16.02.10 | |

09 Nov

...be possible to agree on at least one thing as the conversation at war’s end begins: it would be better to make decisions about which of these laws are needed after we have a developed a game plan for U.S. counterterrorism strategy for the long-term. A strategy not driven by the demands of crisis-driven fear, as it was in the months after September 11, or by ex-post mistake mitigation, the task that confronted the President in his first term, and in important ways burdens him still. What we need to...
09.11.12 | |

24 Jun

...Perhaps more importantly, what will be the long-term consequence of the extraordinary public debate over Koh’s nomination? My co-blogger Peter Spiro suggests it is simply going to be the last stand of “sovereigntism” (which would be sad because Peter invented this term). I think that this is really only the beginning of the fight over what is the proper relationship between international law and domestic policymaking. Harold Koh will be confirmed, but it will probably take close to 60 Democratic senators to get him there, and probably a couple of...
24.06.09 | |

03 Mar

...allegations today and trump the ICC’s jurisdiction without having to join the Rome Statute. But it would take time for Israel to adopt (and find ways to enforce) a policy that outlaws settlement activities. Israel could buy this time by joining the Statute and submitting an Article 124 declaration. By joining the Rome Statute, Israel would gain seven years to find ways to achieve long term justice (whether through negotiations or national adjudication). By not joining the Statute, Israel can find herself investigated by the ICC in the short term....
03.03.13 | |

24 May

...with undergirding the legitimacy of the overall strategy, and undertake ways and means to accomplish -- or seek to accomplish -- those objectives. John C. Dehn Thanks for this, Marty. My only wish is that Adviser Koh would have relied upon, perhaps even emphasized, the "organizations" term in the AUMF rather than "persons." The AUMF says that "the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001,...
24.05.11 | |

17 Jun

...then also the President of the ICTY, and an unnamed American ambassador — presumably to the UN — about Carla Del Ponte, who was nearing the end of her term as Prosecutor at the time. Judge Meron’s statements, as summarized by the cable, are truly shocking. Here is the summary: President Theodor Meron of the International Criminal Tribunal for the former Yugoslavia (ICTY) met with the Ambassador on July 16 to convey his serious concerns about the performance of Chief Prosecutor Carla Del Ponte and the risk the renewal of...
17.06.13 | |

29 Jul

...model as a long-term basis for strong counterterrorism actions. The final paragraph of the book describes the conflict as “a long war, a war that isn’t quite a war but isn’t quite anything else either, a war we have still not compellingly defined and may never fully define and yet will need to regulate and prosecute anyway.” Elsewhere, I describe it as “something that goes beyond war altogether” and describe in some detail the costs of relying on the war model–which was, in my judgment, inevitable as a short-term response...
29.07.08 | |

08 Jun

I just noticed this decision yesterday by the Canadian Supreme Court holding that the Canadian Charter of Rights and Freedoms generally does not apply to searches and seizures in foreign countries, even those that eventually result in evidence that is used in a trial of a Canadian citizen. I’m far from knowledgeable about Canadian law, but it does seem that this issue is very similar to the U.S. Supreme Court’s decision in Verdugo-Urquidez to similarly limit the applicability of the U.S. search and seizure provision, the Fourth Amendment, to U.S....
08.06.07 | |

09 Dec

...are not exempt from the searches. Shankar “was screened in accordance with TSA’s security policies and procedures”, spokesman Nicholas Kimball said in Washington. A number of factors could prompt a pat-down search, including bulky clothing, but he said the agency did not generally discuss specific cases. Can we be surprised that this happened in Mississippi? The state’s lieutenant governor was quick to condemn the action: “Although I understand we need proper security measures to protect the passengers in US airports, I regret the outrageous way Indian Ambassador Shankar was treated...
09.12.10 | |

12 Apr

forms of writing aimed at the general population, legal writing is aimed at a highly specialized group that uses a specialized vocabulary, containing both unusual terms and common terms imbued with technical meanings. The desire of the author to cover all contingencies overrules brevity, a problem compounded by the tendancy of legal writers to re-use tested stock verbiage rather than writing new documents from scratch. This often leads to legal documents being quite lengthy.' Therefore it is not surprising that this award reads like it does. What is more, the...
12.04.06 | |

24 Nov

...part of the NPT at all. The clause about the "inalienable right" doesn't explicitly mention the term "enrichment" and is couched in qualified language which limits the whole enterprise to "peaceful purposes" undertaken "in conformity" with those external treaty agreements mentioned in Article II. So it's exercise is obviously intended to be subject to those terms and conditions. In the Bosnia genocide case, Judge Lauterpacht pointed out that Article 103 only purports to resolve conflicts between other international agreements and that it does not preempt customary international law. I think...
24.11.13 | |

26 Jul

...US citizen for life without ever having set foot in the US, though I doubt that would be true of the private-jet set around the table with Mitt). Bluman v. FEC presented a very plausible challenge to the ban on campaign donations by nonimmigrants in the US (brought by two very sympathetic plaintiffs – one a lawyer, one a doctor, one Republican, one Democrat, both here on long-term work visas). That was given the back of the hand by the Judge Kavanaugh, on a well-dressed but basically ipse dixit basis....
26.07.12 | |