Search: Symposium on the Functional Approach to the Law of Occupation
11 May Events and Announcements: May 11, 2014
Events Sociological Inquires into International Law” (LSE, May 16-17, 2014) is a workshop with the aim of bringing contemporary international law scholarship into a closer conversation with a number of inspiring and theoretically rich literatures on law and markets deriving from traditions of thinking within sociology and anthropology. We are convinced that, particularly within the field of international economic law, a deeper and more informed engagement with a range of sociological and social theoretic modes of thinking is necessary for intellectual renewal. For details, please visit the workshop site. If...01 Mar The Immunities of International Organisations: The End of Impunity?
into their independence by host governments/courts. Instead of clarifying what this functional standard actually means and how it interacts with the commercial v non-commercial distinction, the Supreme Court chose to simply engage in an exercise of statutory interpretation taking a parochial approach (p. 12). So, there now exists a schism in the international and national law in this respect. However, ‘functionalism’ is not completely irrelevant to the IOIA regime. As the Supreme Court pointed out, the President of the United States can modify an IO’s immunity in light of its...15 Apr Political Commitments: A Response to Professor Swaine
...same set of responses; i.e., in those (many) cases where treaty-makers decline to adopt legal tools for enforcing or implementing the treaty. To the extent that some political commitments serve the same functions (and implicate the same risks) as some treaties, that functional overlap does, we believe, provide a good reason for considering the executive’s authority to make political commitments as a matter of U.S. law. Moreover, part of the controversy surrounding the Iraq SFA—and other political commitments—is the perception that the executive branch uses “unregulated” political commitment to circumvent...06 Feb Bobby Chesney on Targeting Al-Awlaki
Bobby Chesney has posted to SSRN an important draft paper on the law surrounding the targeting of Anwar Al-Awlaki, the Yemini-American radical Islamist cleric in hiding presumably in Yemen. It is still in draft form (to appear in final form in the Yearbook of International Humanitarian Law), and Bobby is still revising and soliciting comments from knowledgeable folks. Here is his comment at Lawfare; the draft paper is up on SSRN at this link. My comments on an initial read? First, I agree with the overall structure of the analysis...26 Jul The Shelling of the UN and the History of “International Personality”
...direct hit, the officer said. Initial reports are that four UN observers—from Austria, Canada, China and Finland—have been killed. Kofi Annan’s angry reaction, publicly calling Israel responsible, surprised some. They wondered whether it was Annan’s place to press Israel regarding the death of the UN observers. Only time will tell whether Annan was politically wise to have reacted publicly but history and international law make his reaction understandable. The legal right of the UN to seek claims on behalf of itself or its employees is well founded. Such “international personality”...07 Feb ICJ Issues Jurisdictional Immunities Judgment
is a matter of comity, not law. Second, the court characterizes immunity as “essentially procedural in nature” and as “entirely distinct from the substantive law which determines whether that conduct is lawful or unlawful (¶ ¶ 58, 93). Some have argued that individual immunity is an aspect of substantive law, a conclusion that is arguably in tension with the Court’s reasoning here. Third, the Court relies very heavily on the judgments of national courts, (¶¶ 73-76, 85, 96) concluding in effect that Italian national courts were virtually alone in denying...03 Oct Book Discussion Investment Law: Comments on Gourgourinis
[Prof. Dr. Anne van Aaken is Professor of Law and Economics, Legal Theory, Public International Law and European Law at the University of Sankt Gallen, Switzerland.] Freya Baetens has done a terrific job of collecting and editing papers by young as well as very versed scholars on a timely topic; namely the integration of international investment law in public international law. Lurking behind is the more general discussion on fragmentation of international law; an issue considered so seriously by the international community that the International Law Commission constituted a study...21 Jul Guest Post: Jurisdictional Aspects of the Article 12(2) Rome Statute Vessel Provision: Some Thoughts on the Provision’s Dogma and Implementation in light of the Comoros Referral
regarded as having a functional character. States try to protect social bonds of attachment against mere formal nationality imposed by the technicalities of law. This functional inquisition is evident in diverse fora. For example in the case of UN sanctions, such as those against Serbia and Iran, the relevant Security Council Resolutions considered the nationality of the vessel based on ownership or contract terms, regardless of the flag under which the ship may sail. (see UN SC Res 787 (1992) and UN SC Res 1929 (2010)). Essentially then, Article 91(1)...13 Jun What’s Left of Judicial Deference?
Though the opinion in Munaf and Omar should give us all some pause, I’m still thinking that yesterday’s Boumediene opinion comes as close as I’ve seen the court come to sounding the death knell for broad judicial deference to the executive on matters of national security. The majority opinion doesn’t just embrace a functional approach to resolving questions of the scope of the Constitution’s applicability abroad. (When constitutional lawyers talk about functional approaches, they generally mean something that takes into account the practical effects of a particular outcome in resolving...24 Jul AJIL Symposium: Pushing Benvenisti Further – International Sovereignty as a Relative Concept
to recognize shared responsibility. Yet, how can such relativization take place without endangering the autonomy of international law and the equality of states under international law? European Union law shows one possibility with its protection of “national identity”. This concept can be compared to the concept of sovereignty, as it regulates the interaction of the various legal orders. The meaning of this EU concept is shaped by public law on the European as well as on the domestic level: While the EU framework prescribes some common elements, the specific meaning...