Search: Symposium on the Functional Approach to the Law of Occupation
13 Mar The Double Standards in the Council’s Treatment of Country Situations
Our criticism of the Human Rights Council’s eight resolutions against Israel is not to say that Israel’s human rights record should be immune from criticism. To the contrary, Israel should be held accountable for its human rights abuses, as should every other UN member state. The problem is that at the Council, Israel is not treated like any other UN member state. Comparing the Council’s approach on Israel to its approach on Sudan, the only other country that it addressed publicly in 2006, illustrates the point. After widespread criticism of...13 Sep General Principles of International Law for Apportioning Responsibility
of multiple tortfeasors. One comparative scholar surveyed the laws of fifteen countries and concluded that an appropriate standard would impose several liability for independent tortfeasors who cause divisible harm, but joint and several liability where they cause indivisible harm. This approach of using general principles of international law is most apropos for international courts and tribunals apportioning responsibility for violations involving non-State entities. My next post will address the private international law approach that the courts in the United States will likely use to apportion liability for international law violations....20 Mar Recognizing the Complexity in Comparative Analysis of National Treaty Law and Practice
...on the topic suggests that, although virtually all states require some form of legislative approach for some treaties, the diversity of approaches makes it difficult to create a uniform spectrum on one end of which the United States lies. For starters, Oona suggests that Tajikistan and the United States are “the only countries in the world that provide for less involvement by a part of the legislature in treaty-making than in domestic lawmaking and make the results of this process automatically part of domestic law . . .” (p. 37)...17 Aug More “Private” International Law Blogging
conflict-of-laws approach offers ways to respect the nature of international law as law, without simplifying that nature by characterizing it exactly as domestic law. In addition, seeing the parallel with conflict of laws brings a wealth of experience that can enrich and refine the debate on international law in domestic courts. Finally, the parallel with conflicts changes international law in domestic courts from a specific problem addressed by international and constitutional lawyers into a general problem of relativism – which, we argue, conflict of laws is uniquely positioned to address....30 Apr Guest Post: Landmark Sovereign Debt Restructuring Award
...BIT (“loans, claims to money or to any performance under contract having a financial value”), because there was inter alia no claim to money, no contractual privity or contractual relationship between Poštová and Greece that could arise out of the bond issuance or trading process. (paras 338-349) By adopting a rigorous approach to treaty interpretation that focuses on the terms in their context and in light of the BIT’s object and purpose in order to give an effective meaning, the award therefore has wider significance in demonstrating that not every...22 Aug Smoking Out the Alternatives to Dominant Executive Power
As many of our readers might have guessed, I generally agree with the approach and conclusions of the Posner/Vermeule book so I have little to add in criticism. Let me jump in therefore to explain why I think their approach is not just correct, but, perhaps more importantly, why their analysis is helpful for advancing the debate over balancing national security and individual rights. Typically, a conversation about security and individual liberty, at least in the United States, gets bogged down in two kinds of predictable debates. First, lawyers in...13 Sep Forced Relationships: Prosecutorial Discretion as a Pathway to Survivor-Centric Justice
...as victims were forced into a conjugal association not of a predominantly sexual nature (paras 187-196). The Appeals Chamber did not, however, exclude that in different circumstances, forced relationships may give rise to sexual slavery. The ICC has adopted this flexible approach: In Katanga and Ngudjolo, the Pre-Trial Chamber held that “sexual slavery also encompasses situations where women and girls are forced into ‘marriage’, domestic servitude or other forced labour involving compulsory sexual activity, including rape, by their captors” (para 431). The Pre-Trial Chamber in Ongwen considered that forced marriage...14 Jan John Yoo Rethinks War Powers
or even any other form of congressional authorization before engaging in major military hostilities. This week, he has posted an article that does not back away from his previous positions, but which does suggest a different approach. Given the transformation of warfare and the different nature of the war against terrorism, he argues against constitutionalizing war powers law into a rigid “Congress-must-authorize-first” rule. Rather, he suggests that the political process might work out the best approach. I don’t know if I agree with his approach, but I do think he...08 Dec Transitional Justice and Judicial Activism Symposium: Introduction
[Ruti Teitel is the Ernst C Stiefel Professor of Comparative Law, New York Law School and the author of Globalizing Transitional Justice (OUP paper2015).] I am very pleased to participate in this Opinio Juris roundtable on my just-published article Transitional Justice and Judicial Activism: A Right to Accountability? (.pdf), and particularly to engage with Dinah PoKempner, Professors Cesare Romano, Chandra Sriram and others who have offered such thoughtful and probing observations on my article. The article grows out of a multi-year ongoing project that examines on the jurisprudence pertaining to...