Search: Symposium on the Functional Approach to the Law of Occupation
04 Sep Another Good Reason Mario Cuomo Never Became President
...enacted (with wide majorities in both houses of Congress) in October 2002, over five months prior to the invasion of Iraq. So what is he talking about? What exactly would have been the functional difference between what Congress did and a formal declaration of war? Now there are lots of good reasons to oppose the Iraq War, but its unconstitutionality is not one of them. And it would behoove both sides in this debate to focus on the policy merits of the war rather than on largely irrelevant legal issues....20 May Can We All Agree that the War Powers Resolution is Dead?
JordanPaust Response... BUT the WPR (sec. 2) only addresses the President's c-i-c power, not the President's authority and duty faithfully to execute the Laws, including international law -- including a U.N. S.C. authorization to use force, nor does it address the President's power as the Executive (executing Laws, including international law). Moreover, Section 8(b), (d)(1)-(2) assures that there was no intent to limit presidential competence to execute relevant treaties of the U.S. (e.g., a U.N. S.C. authorization). See generally 26 Ga. J. Int'l & Comp. L. 15, 19, 21-24 (1996)....25 Mar Some More Quick Thoughts on Medellin
[Mark Movsesian is the Frederick A. Whitney Professor of Contract Law at St. John’s University School of Law.] Thanks to Chris for inviting me to say a few quick words about today’s very significant decision. Hooray for Dualism: Just as he did two years ago in Sanchez-Llamas, CJ Roberts endorsed a dualist approach to the judgments of international tribunals. Dualism teaches that international and domestic regimes are entirely independent; in the absence of a domestic act of incorporation, international judgments cannot serve as rules of decision in domestic courts. Because...
26 Oct Is Immunity for Killing Two Indian Fishermen Justified? Curious Case of “Enrica Lexie”
“Sergeant Girone’s continuing deprivation of liberty, which is in breach of minimum guarantees of due process under international law, causes irreversible prejudice to Italy’s rights of jurisdiction over and immunity for its officials.”Moreover, since the officer in question was exercising his ‘official function’ at the time of the incident is thus entitled to immunity from Indian criminal jurisdiction. The source relied on by Italy to show the act was indeed an official act was Italy’s Law No. 130 of 2 August 2011, Article 5 of the said law provides for...02 Sep Syria Insta-Symposium: Ezequiel Heffes and Brian E. Frenkel–The Decision-Making Process of the R2P Doctrine: Towards New (Old) Paths in the Use of Force in International Law
use of force, but what does this mean? An alternative view of the existence of the prohibition of the use of force in international law has to be approached. Rosalyn Higgins has postulated in the past that international law is a legal decision–making process, i.e., it is a continuing process of authoritative decisions. This idea considers that rights and obligations of entities are created by participants –and not by subjects of international law, a notion that according to her has no functional purpose– and determined not by reference to the...17 Jun More on Eisenstrager
...held only under US authority, they may be entitled to Habeas review. Once the Iraqi government takes an interest, however, it supercedes US jurisdiction. HowardGilbert If you accept that Eisentrager arises from principles of international and national law and not the letter or any particular treaty or statue, then this argument runs smack into the problem that everyone has been closing their eyes and trying to ignore. The enemy has an alternate theory of law that he regards as superior to our law. In his theory, all the members of...11 Jul New Vulnerabilities: the Fate of Governmental Data Stored on the Cloud
supremacy. Regarding the infringement of a state’s territorial sovereignty, no consensus could be found among the Experts as to whether or not a “cyber operation that results in neither physical damage nor the loss of functionality amounts to a violation of sovereignty” (Rule 4, note 14). Among the proponent of a violation of territory in spite of any physical damage or loss of functionality, Experts noted that “altering or deleting data stored in cyber infrastructure without causing physical or functional consequences” could potentially amount to a violation of sovereignty. Nonetheless,...18 Jun Berman Book Discussion: Berman Agonistes
feature conflicts involving state law, such as competing claims for authority between two or more states (should the IP law of states A or B should govern the registration of internet domain names); between domestic and international institutions (such as the ICJ and US Supreme Court decisions in the Avena/Medellin line of cases); and between public and private actors (such as when religious and state law diverge on family law matters). Perhaps as a result, GLP devotes very limited attention to analysis of “conflicts” between and among different functional international...24 Sep Some Observations and Opinions on the “Zero” Version of the Draft Treaty on Business and Human Rights (Part II)
States prove weak or unable to hold corporations accountable despite their best efforts, thus reducing the impunity. Article 6, on the other hand, begins by confirming that “[s]tatutes of limitations shall not apply to violations of international human rights law which constitute crimes under international law”, which echoes ICTY and Inter-American case law, among others, apart from instruments as the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity or the very Rome Statute of the International Criminal Court in article 29. Now, quite interestingly,...