Search: Symposium on the Functional Approach to the Law of Occupation
13 Jun Reform of the International Criminal Law Framework in Germany – Successful Changes and Missed Opportunities: Part I
framework for the prosecution of international crimes (BT Drs. 20/9471, 20/10015, 20/10131 No. 1.21, as amended by the Legal Affairs Committee, 20/11661). The declared aims of the legislative amendments are to “close gaps in criminal liability, strengthen victims’ rights and improve the broad impact of international criminal law judgments”. Accordingly, the reform of covers a broad scope – important changes provided for by the law concern both substantive and procedural aspects in the German Code of Crimes against International Law [CCAIL], the German Criminal Code [CC], the German Code of...26 Sep Failed States and Legal Fictions
that included all the parties. (Self-promotion alert: I analyze these and other like cases of fictional and coerced consent in my book Humanitarian Occupation). So far international law has not taken this elaborate fictional façade as a sign that failed states should be treated, in some or all respects, as legally different from functional states. Political scientists observing the same phenomena have not been so reticent. Robert Jackson famously refers to failed states as “quasi-states” and distinguishes been the empirical and juridical function of states, the former being missing in...16 Oct What’s at Stake in the Sovereignty Debate?: International Tax and the Nation-State
[Professor Diane Ring is Professor of Law at Boston College Law School] The international tax problems of today are typically beyond the scope of a single nation to solve. However, the prospect of multinational problem solving, often under the auspices of an international organization, unleashes objections grounded in sovereignty. Despite widespread reliance on sovereignty arguments, little attention has been directed at what is meant by sovereignty and what place it has in international tax policy. This article contends that a loss of tax sovereignty undermines both significant functional roles played...28 Apr NETmundial, Borders in Cyberspace, and a Duty to Hack
...delineate the borders that divided them. Laws and borders have a similar relationship. Sometimes laws are the product of borders as when national boundaries delineate the reach of States’ authorities. But borders may also be the product of law; laws regularly draw lines between permitted and prohibited conduct or bound off required acts from permissible ones. Both logics are on display in debates over international law in cyberspace. Some characterize cyberspace as a unique, self-governing ‘space’ that requires its own borders and the drawing of tailor-made rules therein. For others,...25 Jan Ku and Yoo on the Alien Tort Statute
ATS, we take a functional approach and consider whether the Court’s interpretation of the ATS, which relies heavily on the federal courts, is the best way to achieve the purpose behind the ATS. We conclude that, from a functional perspective, the Executive Branch is best positioned to determine how and whether to adopt rules of customary international law on behalf of the U.S. We propose that treating customary international law as state common law, subject to federal preemption by the President, is the best way to maintain a judicial role...
17 Feb The Other Carolines
the necessary and voluntary law of nations as well as conventional and customary agreements between states – which is beyond the scope of this blog post. Suffice to say that bilateral agreement was insufficient proof of general applicability. Especially considering that back then approaches to international law were quite diverse: “where the inference from the law of nature is not clear, each nation must be allowed its own interpretation of that law, with the result that in some instances the strict precepts of the law of nature may be evaded”....
10 Jun Are the Oslo Accords Still Valid? For the ICC and Palestine, It Should Not Matter
...to enforce jurisdiction over acts committed by Israelis in their territory. The term “prescriptive jurisdiction” refers to a state’s capacity to “make its law applicable to the activities, relations, or status of persons, or the interests of persons in things”. “Enforcement jurisdiction”, on the other hand, concerns the ability to “enforce or compel compliance or to punish noncompliance with its laws or regulations” (for more, here). As previously argued by Kai Ambos and Roger O’Keefe, and recently stated by the OTP, bilateral jurisdictional agreements such as Oslo could only affect...15 Jun What is De Facto Sovereignty?
...the Constitution authorizes our Government to enforce our laws abroad, then when the Government agents exercise this authority, the Constitution travels with them. Under this definition, the Constitution is an unavoidable correlative of the Government’s power to enforce the law. I don’t think it is clear which of these possible definitions future courts will adopt. It really is anyone’s guess. The Court in Boumediene seemed to emphasize a functional, ad hoc approach that would prevent the political branches from exercising power and then manipulating the circumstances under which that power...