Search: Symposium on the Functional Approach to the Law of Occupation
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...
26 Mar Symposium on Prosecuting Heads of State for International Crimes: The Tangled Legal Terrain of the Maduro Cases – Crimes Against Humanity, Drug Trafficking and the Immunity of an Alleged President
...office of Head of State as a matter of fact rather than of law (de facto as opposed to de jure), regardless of whether power was acquired through unlawful means, which should be left to each country’s internal affairs. In the present case, Maduro would be granted personal immunity even in the U.S. proceedings, since he claims to be still holding office. This approach, grounded in the doctrine of effective power, was originally conceived to protect States from external interference and to safeguard the people’s right to self-determination. In practice,...16 Nov Outcasting as Inclusion and Exclusion
outcasting as a form of enforcement enunciates more than a narrow functionalism – it elicits broader questions of who is the community and what are its values and demonstrates that such values are not necessarily homogeneously shared or universal. If we accept this account, then perhaps we can say that Hathaway and Shapiro are correct primarily in a functional sense that international law does not rob states of their sovereignty. However, in the broader sense I have used the term outcast, one can raise doubt that international law does not...06 Jul Foreign Officials Immunity Determinations in U.S. Courts: The Case Against the State Department
in cases against states. Finally, there is strong support in the case law for the courts’ power to develop federal common law of foreign official immunity: this is the approach the Court has taken in the Act of State context which is quite similar to immunity, and it is especially appropriate to ensure that Congress’s goals in FSIA are realized, as the Court reasoned with respect to the Federal Tort Claims Act in the Boyle case. There are many issues I have not addressed in this post, including international law...26 Mar Lessons Learned on the Rational Design of International Environmental Agreeements
...would expect them to design treaties based on functional considerations. But since functional considerations often point in different directions, they do not produce determinate results. Moreover, as Kal Raustiala persuasively argued in his AJIL piece, “Form and Substance in International Agreements,” many other factors also influence negotiations – including, in particular, domestic politics. So functional explanations are, at best, incomplete. But my concern here is with a different use of the rational design literature: not its value ex post in explaining existing agreements, but its value ex ante in designing...
27 Nov Vie for the Big Guy: Developing Practice or Déja-Vu?
news cycle to ‘exceptions’ precluding the immunity of Al-Assad and his cronies in front of French courts must be heavily nuanced. To posit the existence of a universal ‘exception’ to the immunity enjoyed by high-ranking officials would oversimplify the intricate nature of this legal principle. This is because the law on the immunity of a state agent’s office (immunity ratione personae), and the law on the acts of a state agent within the course of their functions (immunity ratione materiae) have been subject to two very distinct evolutionary arcs. The...10 Jul The Conundrum of International Organisations Immunities: Jam et al v International Finance Corporation (Part 1 of 2)
[Rishi Gulati is a Barrister at the Victorian Bar, Australia; Dickson Poon Scholar of Law at King’s College London; and Academic Expert, Bretton Woods Law, London] Following the conclusion of the much discussed Haiti Cholera Class Action in US courts, the immunities of international organisations (IOs) have again been tested in the courts of that country in claims filed against the International Finance Corporation (‘IFC’), a financial institution within the World Bank Group. This is the first of a two part post. In Part I, I canvass some general matters...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...
24 Mar Symposium on Prosecuting Heads of State for International Crimes: The Special Tribunal for the Crime of Aggression against Ukraine and Immunities
[Noëlle Quénivet is Professor in International Law at the Bristol Law School of the University of West of England (UK). She holds a LLM in International Human Rights Law from the University of Nottingham and a PhD in Law from the University of Essex] When the Council of Europe and Ukraine signed an agreement on 25 June 2025 establishing the Special Tribunal for the Crime of Aggression against Ukraine (STCoA), many hoped it would sweep aside both the functional and personal immunities of the Russian and Belarusian “Troikas” (the Head...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...