Search: Symposium on the Functional Approach to the Law of Occupation
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....
22 May Curb Your Enthusiasm (Not Your Emissions): Analysis of the ECtHR Rulings on State Responsibility for Climate Change
control over individuals on such territory (Chriagov and others v. Armenia, Cyprus v. Turkey, Manitaras and Others v. Tukey, etc). Duarte Agostinho challenged this approach by arguing that, given the diffuse trans-boundary nature of climate change, control over the source of emissions should be the decisive factor regarding jurisdiction. The ECtHR did acknowledge the causal relationship between GHG emissions on the territory of a State, and their adverse impact on the human rights of people abroad. However, it found these were insufficient grounds for expanding its established approach to extraterritorial...
17 Jul Symposium on PMSCs: From Power to Peril – Risk Transfer by Private Military Security Companies and the Global South’s Burden
[Madhumita Jayashankar is a final-year B.A. LL.B. (Hons.) student at Rajiv Gandhi National University of Law, Punjab, specialising in international law with a major in political science] In recent decades, the landscape of global security has undergone a quiet but profound transformation. The privatization of military and security functions and services has surged since the end of the Cold War, fundamentally reshaping how states manage risk and project power. Today, Private Military and Security Companies (PMSCs) are no longer marginal actors but central in operating in armed conflict environments or...
25 Jan International Law’s Invisible Frames Symposium: Inter-Temporality, Legal Fictions and Wartime Emotions in the Investigation of International Humanitarian Law Violations
in their reasoning there is a conscious appeal to a fictional “inter-temporality”, borrowing the expression from a doctrine well known in international law according to which —as judge Max Huber expressed in the 1928 decision on the Island of Palmas arbitration case (p. 845)—, “a juridical fact must be appreciated in the light of the law contemporary with it, and not of the law in force at the time when a dispute in regard to it arises or falls to be settled” (on the debates around the concept see Elias...21 Nov The Ninth Circuit’s Muddled Comity Analysis in Mujica
...different or (2) when the laws are different and the interests of the forum would be more impaired than the interests of the other jurisdiction. Otherwise they apply foreign law. Applying California choice of law, the Ninth Circuit exercising diversity jurisdiction ordinarily would retain jurisdiction of the state law claims and resolve them under Colombian law (as the government with the greatest interests at stake). The whole purpose of Brainerd Currie’s government interest approach (adopted by the California courts) is to exercise jurisdiction in a manner consistent with the legitimate...
15 May EU Corporate Human Rights Due Diligence Obligations: From Means to Results
corporations to fulfil their HRDD-based duty. National judges have already followed this approach when interpreting civil law duties (of care). The common law cases of Vedanta and Okpabi are two of the most straightforward examples when it comes to corporate tortious liability for human rights violations. In these cases, the judges introduced a presumption of negligence element into the fault-based duty of care. They argued that when a corporation introduces a policy framework to avoid human rights abuses, it could be safely assumed that it has knowledge and control over...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....16 May Book Discussion “Outsourcing War and Peace”: Too Many Gaps – The Need for a Better Accountability Framework for Private Military and Security Contractors
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...08 Apr I agree with Harold Koh
...at all. It is inherent because it flows from natural law, and article 51 simply refers to it. Modern lawyers are not accustomed to answering uncomfortable questions about where natural or inherent rights come from. They can’t come from the positive law, otherwise they wouldn’t be inherent. The whole point of being inherent is that even if the positive law denied them, they would still exist. That’s what inherent means. In other words, there’s an area of the law that endures after the positive law runs out. You might find...