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

30 Jul

...Judge Wilkinson’s analysis. First, we can critique it in terms of the extent to which it does or does not in fact reflect IHL principles. Gabor Rona does that here, and we should probably spend some time today grappling with the questions he raises. But for now I want to focus on a second approach, in which we consider Wilkinson’s analysis for its merits either because it may serve as a template for a domestic law solution to the scope-of-detention dilemma, or because it may well catch on as the...
30.07.08 | |

21 Sep

...in sources that have a greater historical connection to the intellectual roots of the debates in America, if the purpose is to understand those debates in an American context – Thucydides, or even Machiavelli. Put another way, I don’t really think that Schmitt is comprehensible outside the context of Weimar. Nothing is weirder or more intellectually misplaced to me, these days, than to read somewhere about the “Schmittian” approach to emergency in the Bush administration, for example. No one in the Bush administration had ever read Schmitt, ever heard of...
21.09.08 | |

05 Jan

...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...
05.01.10 | |

08 Mar

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...
08.03.07 | |

07 Apr

interpretation. Besides the diversity of the actors, the growing trend towards specialization in international law (mirroring a development in national law a century ago), accompanied by the “tunnel vision” symptom, fostered the emergence of distinct interpretive communities. Such tunnel vision, focusing on the unique goals of each specialization, can lead to the chopping of international law into discrete “blocks”. Consequently, generalist international lawyer idealized in Schachter’s famous “Invisible College of International Lawyers” are an endangered species. Today, there are interpretive communities of human rights lawyers, investment lawyers and environmental lawyers...
07.04.15 | |

13 Jun

...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...
13.06.08 | |

10 May

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...
10.05.10 | |

31 May

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...
31.05.11 | |

21 Apr

[Craig Martin is an Associate Professor at the Washburn University School of Law. He specializes in international law and the use of armed force, and comparative constitutional law He can be reached at: craigxmartin@gmail.com.] Far-reaching revisions to Japan’s national security laws became effective at the end of March. Part of the government’s efforts to “reinterpret” Japan’s war-renouncing Constitution, the revised laws authorize military action that would previously have been unconstitutional. The move has been severely criticized within Japan as being a circumvention and violation of the Constitution, but there has...
21.04.16 | |

07 Jun

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...
07.06.06 | |

25 Feb

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...
25.02.05 | |

17 Jul

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...
17.07.07 | |