Search: Symposium on the Functional Approach to the Law of Occupation
15 May Human Rights Treaty Body Review 2020 – Introducing the Integrated Treaty Body System as a More Ambitious Alternative
[Jan Lhotský is the head of the Czech Centre for Human Rights and Democracy . He also works as a lawyer at the Office of the Public Defender of Rights (Ombudsperson) and as a senior researcher at the Centre for International Law of the Institute of International Relations in Prague.] The universal system of monitoring human rights obligations – the UN treaty bodies based in Geneva – has been in need of reform for decades. There were several waves of reform proposals during those years, but each time only minor...
07 Feb Biometric Data, Data Protection Authorities, and Migrants: A Complex Nexus
prevent multiple applications for asylum. The possibility of accessing these data and requesting their correction if they are incorrect is expressly laid down in Article 29 EURODAC. The prospection of requesting their deletion if they have been unlawfully processed is also granted, but it is not specified when they are to be considered unlawful. Since personal data protection is always at stake, the authorities competent to ensure that the respective rights are guaranteed here are the Data Protection Authorities (DPAs) in the respective Member States, as enshrined in Article 30...05 May The Elusive Foreign Compact
agreements free from congressional oversight or approval. At the same time, the Executive has come to police the constitutional propriety of U.S. state agreements with foreign governments. This essay focuses on the informational, functional and structural challenges of having the Executive act as a surrogate for Congress in overseeing state agreements abroad. First, executive oversight has done little to remedy a growing informational deficit on what agreements U.S. states are making with foreign governments. Second, even if the Executive knew what the states were doing, it lacks the functional capacity...28 May Rwandan Human Rights Activist Convicted by Gacaca Court
...(Article 16). The legislation further stipulates a number of criteria that can lead to the replacement of any member of a gacaca organ upon the demand of other members of that organ (Article 12). Unfortunately, in terms of due process, the gacaca appeals system is no less flawed than the gacaca trials themselves, even for Category II defendants who — like Byuma — are entitled to judicial review of their convictions: The Gacaca Courts do have an extremely limited judicial review in the form of the right to appeal by...09 May Guest Post: Immunity — Separation of Powers, Human Rights Cases, and Yousuf v. Samantar
[Ingrid Wuerth is Professor of Law and Director of International Legal Studies at Vanderbilt University Law School. You can reach her at: Ingrid.wuerth@vanderbilt.edu.] This post examines two aspects of the Fourth Circuit’s 2012 decision on remand in Yousuf v. Samantar. Samantar has petitioned the Supreme Court for certiorari again, and the initial briefing on the cert. petition should conclude soon. Now is accordingly an opportune time to examine the Fourth Circuit’s decision, which has attracted excellent blog commentary from John Bellinger and Curt Bradley at Lawfare and Bill Dodge here....
04 Jun The End of Treaty Reservations as We Know Them? Not Yet – Reflections on Sudan v. UAE and the Normative Weight of the Dissent
and frustrates its object and purpose. This critique aligns with evolving trends in general treaty law, as reflected in the International Law Commission’s (ILC) Guide to Practice on Reservations to Treaties. ILC Commentary on Guideline 3.1.5.7’s cautions against reservations to dispute settlement provisions where such clauses are indispensable to the effective implementation of a treaty. As posited by the ILC, “is the “raison d’être” of the treaty, its “fundamental core” that is to be preserved in order to avoid the “effectiveness” of the treaty as a whole to be undermined”...29 Jan A Reply to Professor Mallat
...pooling is the core of the bank’s service. Nevertheless, Professor Mallat and I agree entirely on the substance of Islamic finance, and he is certainly right that Sadr’s approach is quite interesting and indicative of his functional style. If, Sadr wonders, the bank is using the capital of one group of people to fund another, why not simply consider transactions across the financial intermediary to be one collective whole, disregarding as a result the formal existence of the intermediary? While that particular idea may not be attractive, the approach, of...06 Jul Discussion on Foreign Officials Immunity
structure of the Constitution, functional and historical arguments, the Court’s case law, and implied congressional authorization are all examined and rejected as possible grounds for the power asserted by the executive branch to make determinations as to foreign officials immunity. Instead, the development by courts of a federal common law of individual immunity (with no binding authority in the executive branch) fits comfortably within the existing jurisprudence on federal common law and is preferable on functional grounds. Curtis Bradley, Larry Helfer and David Stewart will respond to Ingrid’s article. Welcome!...07 Jul Foreign Officials Immunity: A Response to Wuerth
the Executive Branch’s position, based on constitutional text and structure, history, and functional considerations. I agree with much of what she has to say, and the federal common law framework for individual immunity issues that she suggests (which would take account of statutory policies, international law, and appropriate deference to the Executive Branch, see pp. 967-75) overlaps with the considerations that Larry Helfer and I recently outlined in International Law and the U.S. Common Law of Foreign Official Immunity. I will nevertheless highlight several ways in which I think the...