Search: Symposium on the Functional Approach to the Law of Occupation
29 May New Laws for a New Cybercommand?
...paucity of judicial opinions in several areas poses both opportunities and risks that policy makers should appreciate—courts can intervene to shape the application of law, particularly in areas involving Constitutional rights. Policy decisions will necessarily be shaped and bounded by the legal framework in which they are made, and policy consideration may help identify gaps and challenges in current laws and inform necessary developments in the law. That process may prompt proposals for a new legislative framework to rationalize the patchwork of overlapping laws that apply to information, telecommunications, networks,...02 Aug That Pesky “Context”…
humblelawstudent When did opinio juris become a flack for Obama? Kevin Jon Heller It's not about Obama, but about a pliant media that is committed to maintaining its preferred framing of the election -- Obama elite, McCain (worth $100,000,000) regular guy, straight talker -- at all costs. humblelawstudent When the media's preferred framing touches on a far more pertinent topic, such as McCain's "100 hundred year" remark on Iraq, I'm sure you provided a similiar "pesky context." Oh wait, you didn't and wouldn't--not that I expect you to. The real...31 Jul When Nations Fight Networks
...of the law of war. It is based on a simple premise: if you conduct yourself as a “lawful” combatant – which requires you to respect the law of armed conflict and facilitate the ability of your enemy to distinguish you from the civilian population – you get the reward of immunity for your warlike acts upon capture. If, however, you violate the law of armed conflict and are subsequently captured, your misconduct falls outside the “blanket of combatant immunity”, and you are subject to criminal sanction. Compliance with the...
20 Oct Is Personal Immunity Becoming an Unjustifiable Barrier for Accountability? The Dilemma of Lifelong Immunity of Authoritarian Heads of State Before Foreign Domestic Courts
ministers from the jurisdiction of foreign domestic courts (Skander Galand, p. 192). With the development of the International Criminal Law framework, the creation of the International Criminal Court (ICC), and the wide recognition of exceptions to functional immunity of foreign State officials accused of core international crimes like war crimes and crimes against humanity, the international community has already demonstrated the need to reform the rules of immunity in the shared interest to promote accountability. However, as absolute personal immunity still holds strong, for the sake of international justice, an...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...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...
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...