Search: Symposium on the Functional Approach to the Law of Occupation
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...
29 Sep On the Anvil: The Netherlands v. Syrian Arab Republic at the International Court of Justice?
...litigated by Russia in both cases. The ICJ in Georgia v. Russian Federation held that negotiation must be “distinct from disputation or protest”, and there must be genuine attempt to negotiate, and evidence of such must be submitted to the court. These are preconditions to be fulfilled before parties can approach the ICJ (which in Georgia v. Russia were not satisfied). However, using the same approach, the court found that these conditions were satisfied in Ukraine v. Russian Federation, thereby finding jurisdiction and permitting the case to proceed. The ICJ...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...
01 Aug Potential Climate Remedies at the Inter-American Court of Human Rights
...laws and practices to new conditions on the labour market, regardless of the kind of technological developments that produce these changes”. Similarly, in Advisory Opinion OC-29/22 on differentiated approaches with respect to certain groups of persons deprived of liberty, the IACtHR set guidelines that states adopt a differentiated approach to the special needs of distinct groups deprived of liberty. This lays the foundation for an Advisory Opinion on the Climate Emergency to set out recommended law and policy reforms to effectively address climate change. In expanding on this foundation of...
02 Oct Trump vs. International Law: Looking at the Koh Thesis in Reverse
played by nongovernmental actors, but unlike Koh it would focus on the way in which the presidency is enmeshed in the national legal system of the United States that, in many respects, does not embrace incorporation of international law. Indeed, efforts by conservative academics in recent decades to preclude direct incorporation of customary international law as a source of U.S. law, to prevent treaties from being self-executing, and otherwise to insulate U.S. law from international law may be seen as seeking to create a legal structure that operates as a...
11 Feb Revisiting Omission Liability at the ICC in the Wake of Evolving Weapons Technology
and circumstances. It follows that in order to effectively address the legal issues that arise in light of the impending tech-based atrocities, there must be scope for such omissions to be penalised. The defensive stance taken by the military powers over a complete ban coupled with the highly destructive power of LAWS merit individual criminal responsibility for individuals deploying these LAWS at the ICC. Even though all stages of LAWS’ development may not be covered by this approach, omission liability ensures accountability at the level of operationalisation of LAWS in...