Search: Symposium on the Functional Approach to the Law of Occupation
26 Mar In Other Supreme Court News: Political Question Doctrine Takes a Hit in Jerusalem Passport Case
Opinions here, with an eight-Justice majority for the result, with the case kicked back downstairs for resolution on the merits. In the long run, this could prove a watershed decision. The Court rejects the “textual commitment” and “no manageable standards” bases for applying the political question doctrine. Neither has ever made a lot of sense to me on their own terms, and they’ll be tricky to trot out in the future. They were window-dressing for the functional imperatives of judicial nonparticipation in the high-stakes dramas of foreign relations. (Justice Breyer...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....25 Oct The Surprising Mbeki Report (Updated)
...dealt with by the national system. This is simply a reflection of the functional limitations of the ICC. It is important that all stakeholders should realize this, and therefore focus on the vital importance of strengthening national legal systems. The principle of complementarity under the Rome Statute in any event gives precedence to national systems, even when a situation has been referred by the Security Council. This means that the ICC is obliged to take into consideration the fact that a State has taken or is taking effective justice measures...
09 Mar Article 103 to the Rescue: A Few Thoughts on the Legality of Russian Claims Under the Genocide Convention, Jus Cogens Duties and Preventive Self-defense
[Moisés Montiel Mogollón is a lawyer advising individuals, companies, and States on matters of international law, human rights, and other international areas at Lotus Soluciones Legales . He is an Adjunct Professor of International Law at Universidad Iberoamericana (Mexico City) and Universidad Panamericana (Guadalajara).] In the wake of the Russian invasion on Ukraine, which the UN General Assembly has already politically qualified as an act of aggression, and, as Ignacio de Casas has pointed out, has seen an impressively strategic use of international litigation on the part of Ukraine, the...06 Sep Syria and the Role of the Security Council
Last Friday, ASIL Insights published an article that I authored, “Legality of Intervention in Syria in Response to Chemical Weapon Attacks.” I followed it up yesterday was an expanded commentary at Lawfare, “Five Fundamental International Law Approaches to the Legality of a Syria Intervention.” A number of readers of the expanded Lawfare post queried me about remarks made near the end of that (lengthy) post concerning the role of the Security Council. Insofar as the disagreements about Syria are serious ones among the great powers, and among permanent five members...
09 May A Special Justice Mechanism for the Crime of Aggression Against Ukraine – For Who, By Who, Against Who?
...international law to (absolute) personal immunity from foreign jurisdiction. There are moreover doubts whether functional immunity, which covers the acts of any State officials, is inapplicable to the crime of aggression (See Draft Article 7 on Immunities of State Officials from Foreign Jurisdiction and its Annex, provisionally adopted by the International Law Commission). Accordingly, the creation of a hybrid tribunal – in the form of a Special Chamber within Ukraine’s judicial system – would be unable to exercise jurisdiction over these individuals, unless Russia consents to such proceedings. Akande has...
07 Jul Customary International Law Symposium: The Stubborn Tenacity of Secondary Rules
the idea, to quote the ILC’s Draft Conclusions on Identification of Customary International Law, that “[t]o determine the existence and content of a [primary] rule of customary international law, it is necessary to ascertain whether there is a general practice that is accepted as law.” “Put simply,” Hakimi insists, “the rulebook conception reflects what many people imagine CIL to be, but it does not describe what global actors use and receive as CIL in the everyday practice of law. It does not reflect what CIL ‘is’ as a real-world sociological...
17 Feb Increasing the Odds for Jockeys Riding Three-Legged Horses: A Way to Strengthen the Effectiveness of the Elected Members on the UN Security Council
...member(s) siding with taking action. Probably most importantly, working together in this way would diminish the “veto threat”, which in its many subtle forms is applied to discourage elected members from even considering coming together and pursuing Council action. The Council working in this way would make clear that it is not our system of collective security that is ineffective. It is made ineffective when permanent members overstep their privileges under international law. Practically speaking, such collective action would require some changes in how elected members approach working on the...19 Jun Judicial Review and Administrative Detention
I would suggest it was a proper response in reining in the executive I well understand those who are critical. On the other hand former Chief Justice Rehnquist’s theory regarding the role of the Court in times of armed conflict is, I respectfully suggest, deeply flawed and ultimately harmful to American principles and values. The ultimate role, I believe, of a ‘comparatist’ is to examine different regimes–in the understanding that profound differences exist–with the intention of identifying strengths from distinct paradigms and to cobble together a functional model for addressing...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,...