Search: Symposium on the Functional Approach to the Law of Occupation
07 Dec COVID-19 and Africa Symposium: “Jurislimitation” In Litigation In the Context of COVID-19, the New Normal?
...executive during times of crisis and emergency? Or should judges play a greater role in protecting human rights in context of the social and economic devastation wrought by COVID-19? These questions are of importance both in countries experiencing significant COVID-19 transmission rates and those who have not yet experienced the brunt of the pandemic. As former Liberian President has suggested, “Coronavirus anywhere is a threat to people everywhere”. International law and the right to effective remedies International law places obligations on States to respect, protect and fulfill human rights. The...
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...10 Nov The Cyber “Shipwrecked” and the Second Geneva Convention
[Jeffrey Biller, Lt Col, USAF, is the Associate Director for the Law of Air, Space and Cyber Operations at the Stockton Center for the Study of International Law, US Naval War College.] This May, the law of naval warfare took a significant step forward with the International Committee of the Red Cross (ICRC) release of an updated commentary on the Second Geneva Convention (GCII). The updated commentary is the first since the original commentary was released in 1960, and recognizes significant changes both in the conduct of naval conflicts and...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...
18 Nov The Use of False Acoustic Signatures by Submarines: Perfidy or Ruse of War?
who is protected. Yet deception has always been a central feature of warfare. From camouflage and dummy tanks to stealth aircraft and electronic countermeasures, militaries routinely mislead the adversary. International humanitarian law distinguishes between lawful ruses of war and unlawful perfidy. Article 37 of Additional Protocol I defines perfidy as acts that invite the enemy’s confidence in a protected status under the law of armed conflict, with the intent to betray that trust. Ruses, by contrast, are acts intended to mislead or induce mistakes without violating any legal rule. 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...
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...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...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,...