Search: Symposium on the Functional Approach to the Law of Occupation
12 Nov Guest Post: Amidst the Academic Mania for the Identification of Customary International Law–The ILC and the Operative Value of Distinctions
meant to be without prejudice to the nature of the doctrine of customary law. The question of customary international law arising in connection with ius cogens was left aside. The regime of customary international law was held to apply across all areas of international law and the idea of differentiated regimes of customary law identification (e.g. in international criminal law or environmental law) was strongly rejected by the ILC and its Special Rapporteur. The position that prevailed in the Palais des Nations is that the difference is not of regime...06 Mar What If Federal Courts Close Their Doors to Human Rights Litigation?
[Donald “Trey” Childress is Associate Professor of Law at Pepperdine Law School.] Let me begin by thanking my dear friend Roger Alford for inviting me to post on Opinio Juris. As Roger noted here Chris Whytock, Mike Ramsey, and I co-hosted a symposium on Human Rights Litigation in State Courts and Under State Law at UC-Irvine last Friday, March 2. Chris, Mike, and I came up with the topic a year ago as part of a transnational litigation symposium that Pepperdine hosted. The topic was based on conjecture: what if...15 May The Fog of Technology and International Law
“fog of technology” to identify a similar situational uncertainty that lawyers face when confronting the deployment of new technology. Simply put, new technology can cloud how lawyers understand the content of law. Of course, lawyers can assess new technology and find it analogous to prior cases, allowing for what I call “law by analogy”, where the nature or function of a new technology is regulated according to how an analogous technology or function has been regulated in the past. But the more novel the technology – the more it can...
30 Oct Options for a Peace Settlement for Ukraine: Option Paper XVI – War Crimes, Crimes against Humanity and Genocide
measures) addressed elsewhere in this project. There are already proceedings concerning the Ukraine-Russia conflict taking place in international courts. This paper will address these proceedings where relevant to international crimes as these are already underway and are therefore relevant options relating to justice and accountability for war crimes, crimes against humanity and genocide. Peace agreements have frequently referred and deferred to international humanitarian law and international human rights law, and more recently international criminal law, requiring parties to the agreement to comply with obligations under these bodies of law. As...15 Nov Dualism is Overrated – As is Monism: A Response to Julian Ku
law), 2. interpret domestic law in conformity with international law, so as to avoid normative conflicts, and 3. grant international law direct effect. Courts in monist States may be reluctant to apply international law, they may emphasize rather than downplay or avoid conflicts between domestic and international law, and they may refuse to grant international law direct effect – and vice versa. In other terms, monism or dualism should not be taken to mean more than they actually do. Thirdly, the distinction between monism and dualism is not an on-off-switch:...16 Sep IL/IR Book Discussion: Comment on Richard Steinberg, “Wanted Dead or Alive: Realism in International Law”
Steinberg undermines the popular view that international law is an alternative to international power politics. US President Eisenhower said in 1958 (on ‘Law Day U.S.A.’ no less) that “in a very real sense the world no longer has a choice between force and law. If civilization is to survive, it must choose the rule of law.” (cited in William W. Bishop “The International Rule of Law,” Michigan Law Review, v59, 1961, p.555) Law is presented as a form or system outside power, coercion, and force. By refusing to see law...
26 Jan Law, War and Letter Writing: Thoughts on Open Letters in International Law
observation about why international lawyers might adopt public-facing statements on the law that some might disclaim in internal disciplinary discussions. Maintaining formalist language in open letters can be understood as a way to insist upon the ‘lawness’ of international law in public domains. Formalism in this context foregrounds the role of the international lawyer as a public figure, one who helps to uphold a coherent international legal system and an autonomous role for international legal practice. Richard Collins and Alexandra Bohm have advocated for the specific role of international legal...