Search: Symposium on the Functional Approach to the Law of Occupation
01 Aug Opinio Juris Symposium: Can History Determine Textual Meaning?
[We are pleased to have Martin S. Flaherty as a second participant in the discussion today. Professor Flaherty is the Leitner Family Professor of International Law at Fordham Law School and a Visiting Professor at the Woodrow Wilson School of Public & International Affairs at Princeton University. A widely published scholar in the fields of constitutional law and history, foreign relations, and international human rights law, we are thrilled to have his comments here today.] Mike Ramsey’s book, The Constitution’s Text in Foreign Affairs, will without question be a major...
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...07 Mar Humanitarian Intervention in Libya: Follow-up Post
Posner — but equally it is law intertwined in a “pragmatic” way (drawing on Michael Glennon’s excellent new book on this topic) with politics and diplomacy. The politics and diplomacy support the “law” in good faith, but inform, alter, and shape it according to changing circumstances in the world. If one is “pragmatic” in that way, then “not legal [technically], but legitimate [politically]” makes perfectly good sense, whether one agrees with it as an approach to international law or not. It might not be one’s preferred approach to international law,...24 Feb Self-Execution Beyond Treaties
enforce federal statutes against state officers via 42 U.S.C. § 1983 in cases in which the underlying statute wasn’t itself clearly meant to be privately enforced; and the Court’s comparable scaling back of implied constitutional remedies against federal officers under Bivens is no less well-entrenched. I open with this point because, the more I read International Law at Home: Enforcing Treaties in U.S. Courts, the more convinced I become that we might draw fairly comprehensive (and perhaps alarming) parallels between the Supreme Court’s evolving approach to domestic enforcement of treaty...03 Sep Strategic Visions in Responding to Terror, and ‘Meta-Methodology’
...this approach for an excessive emphasis on preventing particular terrorist events – what I have called “event specific catastrophism’. These approaches preclude a larger strategic analysis or response. But it is important also to understand what underlies this analytic approach – after all, it takes its cue, not so much from a view on the nature of terrorism, but instead from a view of the nature of the polity that seeks to protect itself from it. That polity – this, I believe, underlies Sunstein’s view – has no consensus and...12 Mar Introduction to Symposium on Transplanting International Courts: The Law and Politics of the Andean Tribunal of Justice
violations of Andean rules. This circumspect and formalist approach has enabled the ATJ to retain its fidelity to Andean law while building relationships with national administrative agencies, courts, and lawyers. But this approach also means that, unlike in Europe, Community law is not an engine of regional integration. Transplanting International Courts updates and consolidates our decade-long study of the ATJ and the Andean legal system, allowing us to focus on the recent period of political turmoil in the Andes, as leftist-populist leaders in Venezuela, Bolivia, and Ecuador entrenched their power...
22 Jul Space Law at the Crossroads: Contextualizing the Artemis Accords and the Space Resources Executive Order
expressing customary international law.” Though they evoke similar imageries in international law and diplomacy, “global commons”— resource domains beyond national jurisdictions— is distinct from the concept of “Common Heritage of Mankind” (CHM) as incorporated in the Moon Agreement. The latter, which came into prominence through “the emergence of North-South cleavage” in the law of the sea, essentially is an approach to manage the former. Not being a party to the MA, it is within the right of the US to reject the MA as the basis for the management of...01 Mar Interpretation of Implication: Some Observations on the Recent ICJ Decision in the Case of Certain Iranian Assets
law as a matter related to the applicable law. Instead of relying on the text to reject one implication and to bring in another one, the Court could have followed its approach in the Oil Platforms case in which the applicability of customary rules on the use of force was discussed at the merit phase. By holding that the waiver from immunities provided in Article XI (4) has no relation with the relevant customary international law, the Court, unfortunately, missed this important opportunity to clarify the scope of state immunity....
09 Feb Civil Society Documentation Efforts: Working Together to Identify and Find Solutions
and what lawyers think it requires from technology. While some lawyers consider encryption to be necessary, tool developers issue caution as the data will be ‘in the wild’ at some point, meaning that there can be irrecoverable data loss with the use of certain high-security features such as end-to-end encryption. [e]yeWitness navigated this issue through the inclusion of lawyers as end users of the tool throughout development. This resulted in an encryption process that reflected the analog system sufficiently. Including lawyers as end users of the data throughout the development...12 Sep The Fallacy That Attacking a Judicial Institution and its Personnel Protects Americans: A Response to John Bolton’s Speech
Salem "Such threats of extra-legal measures" What extra-legal measures? Bolton explicitly states that he will take measures "permitted by U.S. law." Or are you claiming that ASPA is somehow a violation of international law? You can't have it both ways. Yes, France doesn't need US consent to prosecute US citizens who commit crimes under French law in French jurisdiction. But by the same token, the US doesn't need Gambia's consent to prosecute Fatou Bensouda if she conducts ICC-related investigative activity in a US jurisdiction. Mind you, it's far from clear...