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Search: Symposium on the Functional Approach to the Law of Occupation

11 Apr

...use force; (2) the CIA’s understanding of whether/how international law constrains its actions. Domestic authority. Preston correctly explains that the CIA must have some source of authority under domestic U.S. law to carry out “hypothetical” activities involving the use of force abroad. In this inquiry, of course, international law is irrelevant. And I don’t read Preston to suggest that international law can give the U.S. government powers it does not otherwise possess under our own Constitution and laws. So what gives the CIA its authority to carry out drone strikes?...
11.04.12 | |

02 May

...this general suggestion, I would just make one exception: any talk of "war" is liable to lead lawyers to assume that the relevant law is that of armed conflict, when it may not be. [The same lawyer might then think that the relevant international law is only that of armed conflict, notably international humanitarian law, to the exclusion of human rights law. It hardly bears pointing out that that is completely fallacious.] P.S. O'Donnell Thanks Tobias: You gave legal form to my layman's intuitions. HowardGilbert The Security Council agreed that...
02.05.08 | |

10 May

...You state that "the conduct-regulating rule under the statute comes from international law." But while the rule may come from international law, under the court's analysis its recognition implicates the lawmaking authority of the federal courts. Right? The Court's maneuver was to treat the recognition of the conduct-regulating rule as an elaboration of federal common law, albeit one that "comes from" international law (to what degree? that is an ongoing question). It then analogized federal common lawmaking to statutory law. I am not arguing whether it was correct to apply...
10.05.13 | |

11 May

...19th Cent, an IAC in today's parlance) and that conflict was further internationalized with use of combat forces by the U.S. and, thereafter, several other states. Saudi combat operations have internationalized the insurgency/belligerency in this instance. But whether or not a blockade is generally permissible, other international law must be complied with -- e.g., any relevant laws of war, human rights law, other international criminal law such as that regarding crimes against humanity. Lotus?? The actual case involved nonuse of the Turkish victim theory or passive nationality theory in the...
11.05.15 | |

01 Dec

does not inspire confidence for the future of constitutional comparativism. Unlike in Makwanyane, the Court all but ignored comparative law and severely discounted the importance of international law. It recognized that while there is no international law support for gay marriage, neither does international law expressly prohibit it. “[W]hile it is true that international law expressly protects heterosexual marriage, it is not true that it does so in a way that necessarily excludes equal recognition being given now or in the future to the right of same-sex couples…” (para. 105)....
01.12.05 | |

02 May

...exception of genocide. The case is not in doubt, and what is at stake is the honor, institutional integrity, and public safety of the United States. These people must be prosecuted and punished for their crimes. If we are truly a nation of laws, not men, then the LAW must take it's course and render impartial justice. And I'm having a real hard time understanding why so many lawyers like Roger Alford, Julian Ku, and Ken Anderson think that enforcing or obeying our laws is such a bad idea. Except...
02.05.09 | |

15 Mar

[Charles C. Jalloh is a Professor of Law at Florida International University. He previously served as a legal adviser in the Special Court for Sierra Leone and is founder of the Center for International Law and Policy in Africa based in Freetown. His related works include, as editor, The Sierra Leone Special Court and Its Legacy: The Impact for Africa and International Criminal Law (Cambridge, 2015). This essay was initially prepared at the request of FIU Law Review for its micro-symposium on The Legal Legacy of the Special Court for Sierra Leone by Charles C. Jalloh...
15.03.21 | |

12 Aug

...recognition of the right to development, etc.). By reconciling international human rights law and international economic law, the AfCFTA would take a human-centered approach that seeks, ab initio, to avoid the marginalization and exclusion that appears to be a consequence of privileging markets over people. Three possibilities are explored below. International Economic Law Subsumes Human Rights The AfCFTA Agreement’s Preamble recognizes “free movement of persons, capital, goods and services” as well as “the importance of … democracy, human rights, gender equality and the rule of law, for the development of...
12.08.19 | |

10 Oct

as we now must admit, is that international law and appeal to Western sensibilities will not stop the genocide. The ICJ, the ICC, and the entire infrastructure of international law were never designed to protect the colonized or the oppressed. As Mohsen al Attar aptly describes, we must scrutinize the role international law plays not just as a flawed system, but as ‘a system designed to fail the colonized’.  The ‘Iron Wall’ of Western Academia  The response of universities to protests, encampments, and direct action was to mimic Jabotensky’s Iron...
10.10.24 | |

11 Mar

...judicial application of international law is anti-democratic. From the perspective of Ely’s theory, it is the constitutionalization of American law, not the internationalization of American law, that is anti-democratic. Moreover, if courts apply international law intelligently, judicial reliance on international law can provide a partial solution to the problem of excessive reliance on constitutional law. No doubt, the approach I am suggesting here – using international law as an alternative to constitutional adjudication – sounds radical to modern lawyers. But this proposal would not have seemed radical to the Founding...
11.03.07 | |

08 May

...ante la Suprema Corte de Justicia de la Nacion,” ¶ 4.) 3) If there is no right to abortion under international law – the Amnesty position circa 2005 – what then is the source of such obligations which Amnesty was touting after its 2007 policy switch? Did what was commonly understood to be the basis of obligations in international law change so radically in two years? 4) As I think Prof. Ku would agree, there are generally two sources of international obligations– treaty law, and customary international law. Principally, a...
08.05.09 | |

16 Sep

Law Making, Interpretation, Compliance, and Global Legal Structure,” recounts some basic lessons about international law from realist and hybrid approaches that employ realist elements. Realism is powerful for explaining international law making, constraints on judicial interpretation of it, and compliance– which are the microfoundations of realism’s insights about the global structure of international law. The effect of structural change on international law is exemplified by a realist history of international law since the Second World War. The concluding section suggests the importance of realism for advancing the science and art...
16.09.13 | |