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Search: Symposium on the Functional Approach to the Law of Occupation

04 Aug

residents who are dependent on state or private enterprise for the delivery of basic and essential services, meaning international law has a significant impact on daily habits for billions of people. South Africa and Ireland want to provide water for their citizens but their approaches show striking differences. South Africa constitutionally protects the right to water but implementation falls short, while Ireland’s new framework is beginning to reflect international guidelines but provides no domestic legal guarantee. These experiences show value in a duel-track approach for international law, with expanded recognition...
04.08.15 | |

15 Jul

branches of international law, such as international criminal law and international humanitarian law, have been reshaped in light of human rights. Interventions in internal conflicts have not been immune to this process. Accordingly, over the past years we have witnessed a new shift from effectiveness to legitimacy, whereby human rights have emerged as a parameter of legitimacy. It should be noted that, in my view, this is a new trend and has not attained the status of customary law yet. We are currently witnessing a moment of transition whereby the...
15.07.21 | |

22 Jul

expressing customary international law.” Though they evoke similar imageries in international law and diplomacy, “global commons”— resource domains beyond national jurisdictions— is distinct from the concept of “Common Heritage of Mankind” (CHM) as incorporated in the Moon Agreement. The latter, which came into prominence through “the emergence of North-South cleavage” in the law of the sea, essentially is an approach to manage the former. Not being a party to the MA, it is within the right of the US to reject the MA as the basis for the management of...
22.07.20 | |

11 Dec

R2P, including those created under the Genocide Convention. While not all of R2P can be characterized as “hard law,” it certainly has hard law foundational roots, including those created under various Geneva Conventions (see my speech on this topic). (Heieck may be attacking R2P to make his argument that the omission of a duty to prevent genocide from the World Summit Outcome document is not fatal to the duty morphing into customary international law (p. 118)—but that also appears unnecessary, as one omission would not necessarily undermine the formation of...
11.12.18 | |

13 Mar

[Mark Weisburd is the Reef C. Ivey II Distinguished Professor of Law at UNC School of Law] Professor Curtis Bradley’s International Law in the U.S. Legal System is an important contribution to the discussion of a topic of considerable significance. Thorough in its coverage but accessible to readers with little familiarity with the subject, it is at once an excellent introduction (for someone with a legal background) to the issues it addresses and a useful compilation for those with some familiarity with the field. This contribution to the symposium addresses...
13.03.13 | |

02 Dec

groups and committed with the intention of maintaining that regime.” At first glance, this seems like progress. Elevating gender apartheid to the same conceptual level as the crime of apartheid appears to give long-ignored harms—especially those experienced by women, girls, and LGBTQI+ people—the same gravity and visibility as others under international criminal law. Yet this approach contains two fundamental flaws that risk replicating exclusions that have plagued the international criminal law definition of apartheid for decades. A. Re-inscribing Outdated and Exclusionary Notions of “Group” Identity By adopting the existing apartheid...
02.12.25 | and |

16 May

contractors, and third-parties injured by contractors. These cases face various hurdles, such as the political question doctrine, state secrets, and preemption of state law tort claims through extending the Federal Tort Claims Act (FTCA) governmental immunities to contractors. Courts have taken varying approaches to all of these doctrines, but in my view there should be a narrow path forward for claims in which the underlying conduct would constitute a serious violation of international law (such as torture) and the contractor retains discretion and does not effectively stand in the shoes...
16.05.12 | |

07 Mar

Posner — but equally it is law intertwined in a “pragmatic” way (drawing on Michael Glennon’s excellent new book on this topic) with politics and diplomacy. The politics and diplomacy support the “law” in good faith, but inform, alter, and shape it according to changing circumstances in the world. If one is “pragmatic” in that way, then “not legal [technically], but legitimate [politically]” makes perfectly good sense, whether one agrees with it as an approach to international law or not. It might not be one’s preferred approach to international law,...
07.03.11 | |

13 Sep

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....
13.09.10 | |

17 Aug

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....
17.08.09 | |

12 Sep

Salem "Such threats of extra-legal measures" What extra-legal measures? Bolton explicitly states that he will take measures "permitted by U.S. law." Or are you claiming that ASPA is somehow a violation of international law? You can't have it both ways. Yes, France doesn't need US consent to prosecute US citizens who commit crimes under French law in French jurisdiction. But by the same token, the US doesn't need Gambia's consent to prosecute Fatou Bensouda if she conducts ICC-related investigative activity in a US jurisdiction. Mind you, it's far from clear...
12.09.18 | |