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

12 Aug John Bellinger Reflects on the 61st Anniversary of the Geneva Conventions

...for domestic law purposes. Of course, the US could not extract itself from its treaty obligations under either approach without withdrawing from the treaty under the basic rule - no state can use its internal law to extract itself from its international obligations. Thus, if the Canadians had the juevos rancheros (especially in having decided that they violated his rights under the Canadian charter of rights and duties) they would assert to the United States the US' Geneva obligations with regard to Omar Khadr right now with regard to the...

20 Nov The Precautionary Principle and the Need for Diversity

were to apply the precautionary principle to that context. (I am not advocating that position by the way, simply arguing for the logic of diverse perspectives on something like extending the precautionary principle to different contexts). Roger Alford Lawrence Kogan Roger, I believe that the focus of the debate should be placed on the fundamental difference between a civil law administrative principles-based presumption of harm which Europe's version of the Precautionary Principle would engender, versus, a common law rules and context-based Precautionary Approach requiring 'substantial', 'unreasonable', 'clear and convincing', or...

27 Sep The Role of Constitutional “Terroir”

...would be unthinkable for any scientific researcher to ignore. He writes that “the law of nations is available to lawmakers and judges as an established body of legal insight, reminding them that their particular problem has been confronted before and that they, like scientists, should try to think it through in the company of those who have already dealt with it.” Waldron argues that “legal science” relies “on the idea that solutions to certain kinds of problems in the law might get established in the way that scientific theories are...

05 May Should John Brennan or Eric Holder Simply Have Quoted Harold Koh?

...that such operations are conducted in accordance with all applicable law …. Some have argued that our targeting practices violate domestic law, in particular, the longstanding domestic ban on assassinations. But under domestic law, the use of lawful weapons systems — consistent with the applicable laws of war — for precision targeting of specific high-level belligerent leaders when acting in self-defence or during an armed conflict is not unlawful, and hence does not constitute ‘assassination’. Isn’t that what the US government actually thinks is legally correct? Of course it is...

12 Jul Treaties in the Supreme Court, 1861-1900

Al-Qaeda types of Middle Eastern origin. Or the death penalty cases with Mexico and the Vienna Convention on Consular Relations. One does see a pattern that successive generations have fought against. And, as with all the legacies of slavery, the utopians have to tell the realists to get their heads straight and bring the United States back into something that complies with basic human rights law and the rule of law - seeing international law as rules of law. Or maybe it is just the optimists in the face of...

27 Jul Gay Marriage and Constitutional Comparativism

Ostrovsky Marko, I think we disagree regarding the Lawrence court's use of "morals." In Lawrence, the court didn't reject the idea that majoritarian morals were important (indeed, it seems to confirm this when it references the ECHR), but rather that morality cannot be the sole reason to uphold the law. I think these are two different things. In addition, although human rights law may be inseperable from morality, as soon as you start asking the question, "Whose morality?" things get complicated. I think the margin of appreciation doctrine itself, in...

18 Jan Immunities

approach avoids some of the obvious problems of the Chuidian approach and is more consistent with the position taken by the United States on behalf of its own officials when they are sued abroad. In addition, certain categories of foreign officials are accorded immunity by more specific legal regimes. Diplomatic and consular officers enjoy immunities under the Vienna Conventions on Diplomatic and on Consular Relations, respectively, bilateral treaties with certain countries, and in some instances customary international law. These sources reflect some of the oldest principles of international law, which...