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

02 Aug Opinio Juris Symposium: Thoughts in Response to Professors Spiro and Ku

...there was a strong 19th century practice against state-level activity interfering with foreign relations (see the discussion in my piece in the Colorado Law Review symposium). Zschernig may have represented the doctrine's zenith. Wouldn't you concede that if it could have been shown that Oregon's action posed a serious threat to our Cold War relations with the Soviets the decision would have been justified? (I know that doesn't fit with the facts of the case, but the twist isn't implausible.) Today the functional (call it "policy" if you want, but...

20 Nov The Precautionary Principle and the Need for Diversity

were to apply the precautionary principle to that context. (I am not advocating that position by the way, simply arguing for the logic of diverse perspectives on something like extending the precautionary principle to different contexts). Roger Alford Lawrence Kogan Roger, I believe that the focus of the debate should be placed on the fundamental difference between a civil law administrative principles-based presumption of harm which Europe's version of the Precautionary Principle would engender, versus, a common law rules and context-based Precautionary Approach requiring 'substantial', 'unreasonable', 'clear and convincing', or...

27 Sep The Role of Constitutional “Terroir”

...would be unthinkable for any scientific researcher to ignore. He writes that “the law of nations is available to lawmakers and judges as an established body of legal insight, reminding them that their particular problem has been confronted before and that they, like scientists, should try to think it through in the company of those who have already dealt with it.” Waldron argues that “legal science” relies “on the idea that solutions to certain kinds of problems in the law might get established in the way that scientific theories are...

07 Jun What Exactly is Legally Wrong with Renditions?

Tobias Thienel If the aim of international human rights law (I am engaging in teleological thinking here) is to provide full protection, as appropriate to the circumstances, why would it allow for a 'third box'? Human rights law in some parts stops where international humanitarian law takes over, because the latter body provides the more appropriate form of protection, in the circumstances of an armed conflict. No such considerations apply where there is no other form of protection, so why reduce the guarantees of international law? Less theoretically speaking, I...

12 Aug John Bellinger Reflects on the 61st Anniversary of the Geneva Conventions

...for domestic law purposes. Of course, the US could not extract itself from its treaty obligations under either approach without withdrawing from the treaty under the basic rule - no state can use its internal law to extract itself from its international obligations. Thus, if the Canadians had the juevos rancheros (especially in having decided that they violated his rights under the Canadian charter of rights and duties) they would assert to the United States the US' Geneva obligations with regard to Omar Khadr right now with regard to the...

18 Jan Immunities

approach avoids some of the obvious problems of the Chuidian approach and is more consistent with the position taken by the United States on behalf of its own officials when they are sued abroad. In addition, certain categories of foreign officials are accorded immunity by more specific legal regimes. Diplomatic and consular officers enjoy immunities under the Vienna Conventions on Diplomatic and on Consular Relations, respectively, bilateral treaties with certain countries, and in some instances customary international law. These sources reflect some of the oldest principles of international law, which...

24 Oct Irrationality

...taken decisions on the basis of irrational arguments. Scary? Yes, irrationality is always scary. But even irrationality is predictable, if we understand how it works. It is high time we adjust our international relations theories to take into account “irrationality”. If we do that, instead of creating international law to cope with problems after they emerge, which is what we invariably do right now, we might be able to create international law that can prevent problems in the first place. That would bring international governance to a far superior level....