Search: Symposium on the Functional Approach to the Law of Occupation
27 Mar If Harold Koh Says It, It Must Be True: The U.S. Is At War with Al Qaeda
...Bush approach", or identified as the specific locus of much of the legal criticism received by the Administration. Indeed, under this account, the curative role played by this criticism is accepted so readily that it is almost as if the Bush Administration never had a differing original approach before the roll-backs took place. Well done Julian, for this impressive sleight of hand! After all, it makes so much sense to view the roll played by the courts, OLC and Justice lawyers, public opinion, and cooler minds in the Administration -...26 May Not a Transnationalist. Some (Really) Early Thoughts on Judge Sotomayor
this case is influenced or controlled by international law.” Similarly, in Center for Reproductive Law v. Bush, 304 F 3d. 183 (2d Cir. 2002), in rejecting a lawsuit challenging the ban on funding for overseas abortions under constitutional and customary international law, Judge Sotomayor disposed of the customary international law argument in a single footnote: “As plaintiffs’ claims based on customary international law are substantively indistinguishable from their First Amendment claims, they are dismissed on the same ground. We express no view as to whether those claims are otherwise viable.”...17 May The Supreme Court takes treaty interpretation seriously: Abbott v. Abbott
hearings to denounce the use of foreign and international law in interpreting the U.S. Constitution. I’d expect Elena Kagan to get similar questions when her nomination comes before the Senate this summer. But, in Abbott the Court ignores this controversy, and thereby suggests its limited only to the use of foreign law in interpreting the Constitution. Indeed, every member of the Court in this case–in both the majority and the dissent–end up citing and relying on foreign law as a significant part of their analysis of whether the ne exeat...18 Nov The Return of the Neocons (and their Scorn for International Law): A Sword without a Strategy
also speaks volumes to the neocons’ stance toward international law. Then there is Senator-elect Tom Cotton. As Heilbrunn notes,”Perhaps no one has been more impassioned in their support of the foreign policy of George W Bush than Tom Cotton.” Cotton, 37 years old, is the neocon wet dream. After Harvard College (where he wrote for the Crimson, citing intellectual idols Allan Bloom and Leo Strauss) and Harvard Law School, Cotton signed up for the military insisting that he be sent into combat in Iraq. While, as the legend goes, the...18 Apr Kiobel Insta-Symposium: The ATS After Kiobel: Less Bark but More Bite?
[Chimène Keitner is Professor of Law, University of California Hastings College of the Law.] The Kiobel majority concludes that the plaintiffs in that case impermissibly sought to extend a U.S. cause of action to foreign conduct by foreign companies against foreign victims (even though the victims subsequently became lawful U.S. residents). It dismisses the historical practice of allowing suits for transitory torts (which I have explored in more detail here) by reasoning that the cause of action in ATS cases comes from U.S. law, not foreign or international law (the...14 Oct Carsten Stahn Guest Post: On Intervention, Narratives of Progress, Threats of force and the Virtues of Case-by-Case Assessment–A Rejoinder to Koh (Part III)
Article 2 (4) recognize ‘shades of grey’ and options for development. There may thus more agreement than divide. In my view, Koh takes a shortcut by criticizing international lawyers for having ‘become more comfortable stating rules than in figuring out how international law might help to push unfolding events towards the right resolution’. The roots of the controversy lie deeper. Koh’s position is based on a specific approach towards international law. His argument is based on the premise that international law is an instrument of problem-solving and a tool to...01 Aug When Does the Combatant’s Privilege Apply?
Under any view, the privilege of combatancy is key to the basic architecture of the law of war. It stands at the fault line between domestic criminal law and International Humanitarian Law, between impermissible killing and lawful belligerency. Simply put, the privilege of combatancy transforms, almost magically, what would otherwise be an unlawful act of murder into a lawful killing consistent with jus in bello. How does this transformation happen? However it happens, it is a powerful legal mechanism, and one whose exact contours demand definition and clarity. The privilege...16 Oct Guest Post: Removing the cloak of immunity – the Director of Public Prosecutions for England and Wales accepts no immunity from criminal investigation into torture
[Oliver Windridge is a British lawyer specialising in international criminal and human rights law. The views expressed herein are those of the author and do not necessarily reflect the views of the United Nations or any other organisations affiliated to the author.] Last week saw the discontinuation of alleged Bahraini torture survivor FF’s judicial review of the Director of Public Prosecutions for England and Wales (DPP) decision not to authorise a criminal investigation into the alleged involvement of Prince Nasser bin Hamad Al Khalifa, the son of the King of...