Search: Symposium on the Functional Approach to the Law of Occupation
08 Mar A Comment on Chimène Keitner’s “Right Beyond Borders”
a satisfactory theoretical framework to approach this question is increasingly problematic. The article proposes a careful comparison of cases from the United States, Canada and the United Kingdom, and uncovers three competing approaches: country, compact and conscience. How, then, do courts choose among these approaches and put them in practice? One might have thought that a natural starting point would be the international law of prescriptive jurisdiction. The first lesson from the cases, however, is that international law does not get us very far. R. v. Hape, the one decision...05 Dec The Climate in Cancun
...players. Their approach was widely criticized as undemocratic and illegitimate – a charge that was, in my view, largely unfounded, but which was pushed particularly strongly by a group of obstructionist countries that have decided to use the climate negotiations as a forum for settling other political scores. (See my post last year from Copenhagen on the “illegitimacy of legitimacy.”) This year, the Mexicans have bent over backwards to create an open process, assiduously consulting countries in order to create an atmosphere in which everyone would feel included. At a...24 Sep Some Observations and Opinions on the “Zero” Version of the Draft Treaty on Business and Human Rights (Part I)
of issues as that of direct obligations or others would not foreclose future –or even simultaneous— developments at all, insofar as business and human rights issues may well be regulated by other sources of international law, customary law and general principles of law included, as Surya Deva and Humberto Cantú have well expressed. Furthermore, the United States Court of Appeals for the Second Circuit acknowledged in the Kiobel v. Royal Dutch Petroleum case that corporate liability may well “gradually ripen [] into a rule of international law” –in spite of...19 Sep Conference Prospectus — ICL as Cultural Hybrid
Criminal Court chosen to adopt common law approaches to certain issues (e.g., direct witness examination) but civil law ones on other matters (e.g., acceptance of hearsay evidence)? In each such instance, can the decision to follow one legal tradition’s approach rather than the other’s be ascribed to anything more rational than the fortuity of which lawyers from which cultural background happened to be assigned a given case? “No” is the near-consensus answer among most people we know. Why did the current competition over whose law would be incorporated into ICL...17 Nov The Legality of Pardons in Latin America (Part II)
prison can no longer serve any purpose given the individual’s health problems and he or she is no longer defending his crimes, a humanitarian pardon could be consistent with Inter-American human rights law. These considerations would also need to be evaluated taking into account time served and domestic law. Indeed, a pardon for an individual that has served 2/3 of his or her sentence is more likely to be accepted than one for someone who has only served 1/3. Likewise, even if all of these requirements are present, domestic law...
06 Jul Three Ways to Improve Victim Participation in the Rohingya Context
[Eva Buzo is an Australian lawyer, and the Executive Director of Victim Advocates International . She lived in Cox’s Bazar between November 2017 and September 2019.] There has been a flurry of discussion about the way in which the Rohingya community, particularly in Cox’s Bazar, Bangladesh, is receiving information about the various accountability mechanisms. On 7 June 2020 the Registry of the International Criminal Court (“ICC”) reported “massive confusion” amongst victims when it came to the different courts and mechanisms purporting to address the crimes in Rahkine state. In August...28 Aug The WTO Appellate Body and International Judicial Deference
...customary international law rules of interpretation. The WTO could have concluded that the first sentence of 17.6(ii) simply embraces an emerging interpretive approach in international law which requires some international tribunals to defer to national authorities in appropriate circumstances. In short, both the first and second sentences of Article 17.6(ii) could have supported an attitude of deference. As I have written in a forthcoming article in the Columbia Journal of Transnational Law, (a draft of which is available for download here), one of the most notable instances of the WTO...24 Feb Medellín’s Influence on the Judicial Application of Treaties
authors claim. To understand why, it is necessary to discuss judicial practice before Medellín. According to IL at Home, in the period from World War II to Medellín, “the lower federal courts developed a bifurcated approach to treaty enforcement.” Id. at 64. They “continued to infer a private right of action for treaties that involved economic or commercial relations. But they began taking a more skeptical approach toward treaties . . . regulating the relationship between the state and the individual.” Id. at 64-65. This claim is mostly right, but...26 Mar The End of “Respectful Consideration” and the Birth of Disaggregated Deference
...a different status because of implementing legislation.” (p. 25). Second, the Court fully embraced the principle that domestic effect should be given to decisions of international courts and tribunals if that is what federal law requires. As I have written elsewhere, this domestic effect falls along a continuum of deference. The Court cited with approval the “full faith and credit” approach of 22 U.S.C. 1650a, which treats ICSID decisions exactly the same as domestic court decisions. (p. 25). It also cited with approval an “arbitration model” under the New York...
18 Oct A Call for Accountability: Violations Against Victims in Afghanistan Are Violations Against Us All
requires a more robust approach, namely — the immediate establishment of an independent investigative mechanism. Until now, States have adopted a softer approach to the human rights situation in Afghanistan, maintaining hope for positive progress by the Taliban. States are still under the view that more time is needed for the de facto authorities to change course. However, after over one year, the Taliban have not kept their promises and have unequivocally proven that they will not do so — failing to meet the terms of the Doha Agreement and...