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

08 Mar SCOTUS Decides a Rare Forum Non Conveniens Case: Sinochem Int’l Co. Ltd. v. Malaysia Int’l Shipping Corp

Antonin I. Pribetic Chris Whytock's interesting analysis of the US Supreme Court's decision in Sinochem raises some intriguing issues; including the interdisciplinary (law/political science) approach to forum non conveniens decision-making and his "territoriality heuristic" thesis, both of which make important contributions to conflict of laws analysis. Mr. Whytock notes that the US Supreme Court "emphasize[d] the fact that the territorial locus of the underlying dispute between Sinochem and Malaysia International was almost entirely foreign" which, coupled with the existence of parallel proceedings, underscores the private and public interest factors at...

05 Jan A Failure of Cooperation or Cooperation of Failure?

...Mark Pollack and Greg Schaffer’s major study offers an extremely valuable approach, bringing together not just law and politics, but also at international and domestic levels. It is good to see critical analysis of deliberation and ‘soft law’, attractive concepts but in practice needing to be linked with interests and power, without falling into a simplistic approach based on thin understandings of interests. An interesting question is how non-majoritarian institutions such as regulatory bodies manage issues that highly publicly controversial like GM foods as distinct from more technical and less...

13 Jun Does Ignoring Precedent Matter?

...detention at all times.. Additionally, the regime ought to comply with the rights which accrue under accepted obligations under treaty, and international law custom which apply to all natural persons, notwithstanding the lex specialis. That’s the floor. But the administration's approach has not opted for an proper laws of war approach. They deemed the detainees non-POW, which is fine (if the CSRTs process was worth a damn anyway), but yet could not enjoy the CA3, to say nothing of other avenues to assert meaningless rights of due process. They’ve simply...

31 May IHL and International Human Rights Law in Non-International Armed Conflict

Jordan Response... 1) there is no lex specialis exclusion of human rights law in terms of customary internaitonal law based on actual patterns of general practice and general patterns of opinio juris. The Latinized phrase has different meanings for some writers and some dicta appears to favor one form of meaning, but it is not customary international law and there is absolutely no treaty-based exclusion of human rights law in the main human rights and law of war treaties merely because there is an international armed conflict. For example, there...

10 May Upcoming Conference: “International Law and the Israeli-Arab Dispute”

Is there anything new or useful to say about “International Law and the Israeli-Arab Dispute”? Well, a number of scholars (including Ken, Roger, and myself) will try to come up with something next Monday, May 17, during a conference at Northwestern University School of Law. This is one of the few subjects intersecting international law where there is way too much writing, but not enough good writing. The agenda is below. Please feel free to drop by if you are in the area. INTERNATIONAL LAW AND THE ISRAELI-ARAB DISPUTE NORTHWESTERN...

07 Jun Gay Rights and the ECHR’s Margin of Appreciation

a restriction is "necessary in a democratic society". It is therefore only natural for the Court to look at other democratic societies, most of all European, when it is deciding such issues. Incidentally, the US Supreme Court has also engaged in this kind of comparativism in Lawrence v. Texas and Roper v. Simmons. Of course, this approach makes sense only if you adhere to the basic idea that the Convention (or the Constitution) is a living instrument, which evolves with contemporary moral attitudes. If you don't, then it is perfectly...

25 Feb War, Law, and Consistency

should be construed, wherever possible, to be consistent with U.S. treaty obligations. But in what sense is a treaty-breaching statute illegal under U.S. law -- including the Supremacy Clause?Thanks in advance for any response. Anonymous Having had Prof. Brogen as a teacher in the past, I've always found his approach to international law worthy of serious considering. However, I fail to grasp the ardent viewpoint of those with a strong predilection toward placing international law on the same footing as domestic law in all circumstances. Prof. Borgen notes the inconsistencies...

17 Jul More on Domestic Terror Courts

Continuing the discussion on the establishment of a domestic national security court, be sure to check out Amos Guiora’s post over at National Security Advisors law blog outlining his recent article forthcoming in the Catholic University Law Review on a “domestic terror court.” The article is very useful because it takes a comparative approach that examines the practices of holding detainees in the United States, Russia, Israel, India, and Spain. Here is a key quote from the conclusion of the article: The United States, post 9/11, clearly represents the extreme...

31 Jul When Nations Fight Networks

...of the law of war. It is based on a simple premise: if you conduct yourself as a “lawful” combatant – which requires you to respect the law of armed conflict and facilitate the ability of your enemy to distinguish you from the civilian population – you get the reward of immunity for your warlike acts upon capture. If, however, you violate the law of armed conflict and are subsequently captured, your misconduct falls outside the “blanket of combatant immunity”, and you are subject to criminal sanction. Compliance with the...