Search: Symposium on the Functional Approach to the Law of Occupation
25 Mar Medellin and the Perversion of Legal Realism
a “law”?; and 2) what is the best way to enforce that law? Under Hart’s approach, the assumption is that all laws must be enforced in some way because the very nature of “law” is that it must be enforced. Unfortunately numerous courts and commentators have twisted Holmes’ idea to produce the opposite result. They think that courts should simply bypass step one, proceed directly to step two, and ask whether the relevant law explicitly requires judicial enforcement. Under this approach, if the law does not explicitly require judicial enforcement,...
21 Mar Symposium on Early Career International Law Academia: “You Keep on Using that Word” – on Methods in (International) Legal Scholarship (Part I)
engage in that thing that lawyers “do”: to tell people – judges, clients, students –what the law is. Within this self-contained world, there were legal sources, and there were professional cues and expectations about what it takes to make a convincing argument on their basis. The legal scholar was basically a lawyer with more time to write long things. In international law scholarship, the hallmark of this tradition is of course the international law treatise. It is true, that for some time, traditional scholarship insisted on viewing law as a...31 Mar ASIL Cables: Interview with James Crawford
...that has seen significant growth since 1945, although it is fair to say that international environmental law is still underdeveloped; much more could be done. In respect of armed conflict and nuclear non-proliferation international law has already made significant contributions, and as these challenges evolve we can see that international law evolves too – for example, the measures taken by the Security Council to assist in the fight against international terrorism after the 9/11 attacks. At the same time we cannot lose sight of the fact that international law is...23 Nov What if ATS Liability has Nothing to do With “Customary” International Law? Part II
(As a note, the law developed by 18th-century Prize courts, perhaps the highest profile law of nations in 1789, often bears a much closer resemblance to the sort of transnational/international common law described in the prior post, than to a modern customary international law described by Oppenheim.) If international law has developed to include new forms of law, including area-specific common law, then these forms should be as relevant to the ATS as customary international law would be. More importantly, recognizing that the jurisprudence of international criminal tribunals represents a...21 Nov What Makes (International) Law Law? Liam Murphy
of Liam’s book that bears the title of the book is in fact a discussion of “law beyond the state”. Liam begins from the much neglected short chapter on international law in Hart’s The Concept of Law, where Hart actually uses international law as an example for the proposition that centralized enforcement and interpretation are not essential elements of a legal system. What is essential is a certain level of systemic integration and coherence, and here Liam faces head on the so-called “fragmentation” of international law. He writes: “At the...
09 May Why Does the United States Continue to Oppose International Courts?
the response” (p. 76) or breach their political authority in responding to international crises. The Supremacy of Law Whether the constitutional tradition of the United States recognizes the supremacy of international treaty law over domestic laws is a matter of intellectual contestation and legal dispute. Since the 1790s, the U.S. Supreme Court has relied upon and incorporated the international legal doctrine into domestic case law. The more recent “internationalist” turn of the Court, however, has generated political controversy and raised largely unsubstantiated fears over the irreversible diminution of U.S. sovereignty. ...22 Mar IHL Does Not Authorise Detention in NIAC: A Response to Murray
drugs, pay your taxes on them.” No one, I think, would argue that crack taxes are valid only if the state is willing to decriminalise the sale of narcotics. But that is what Murray’s argument requires, if we apply it to domestic law — and I see no reason why why international and domestic law should differ in terms of the “regulation requires authorisation” rule. Even if there is a reason to treat international law and domestic law differently in terms of Murray’s rule, IHL itself both prohibits and regulates...
24 Feb Harmonizing Global Health Law and Human Rights Law to Develop Rights-Based Approaches to Global Health Emergencies
the law must take into account these changing circumstances. The pandemic provides an opportunity to clarify human rights law and develop global health law in step with pressing threats to human dignity and flourishment in the modern era. Processes to update, nuance and supplement the Siracusa Principles and IHR are important to this process – providing an opportunity to harmonize human rights assessments across human rights law and global health law. Working together across legal regimes, the ICJ and the Global Health Law Consortium are developing a consensus-based restatement of...