Search: Symposium on the Functional Approach to the Law of Occupation
25 Jan David Sloss Responds to Carlos Vázquez
almost a century after Marshall’s death. Professor Vázquez concedes that the intent-based approach to self-execution is “highly problematic.” When courts apply the intent-based approach and conclude that a treaty is non-self-executing, he says, “they are almost certainly misreading the treaty [and] attributing to the parties a nonexistent intent.” Nevertheless, he claims, we are stuck with the intent-based approach because Marshall adopted that approach in Foster. In contrast, I contend that Marshall applied the two-step approach in Foster. Professor Vázquez apparently agrees that the two-step approach is analytically superior to the...
24 Nov Classification of the Israel-Palestine Conflict under the Laws of War
[Ayesha Malik is Deputy Director at the Research Society of International Law where she leads the Conflict Law Centre. She is also Adjunct Faculty at the Lahore University of Management Sciences where she has taught war law, refugee law, and public international law to undergraduate students.] As Israel launches its most recent military campaign (Operation Swords of Iron) after Hamas’ attacks on October 7, international lawyers have been grappling with the character of this conflict. A number of different theories have been offered and this post will seek to analyze...
04 Aug ‘Small Hiroshima’: Addressing Systemic Cultural Heritage Erasure in Formerly Armenia-Occupied Territories
for determining state responsibility is inadequate when assessing ‘cultural erasure’ in occupied territories. In fact, occupying States are usually engaged in what the International Red Cross (IRC) calls ‘transformative occupation’ intended to overhaul occupied territory in line with their ethnic and political preferences. For instance, Russia’s occupation of and cultural erasure activities in Ukraine’s Crimea, Donbas, Luhansk, and Kherson regions have brought more international attention to ‘transformative occupation.’ Major international organizations set up a number of task forces to investigate and record war crimes in Russia-controlled territories. Likewise, Armenia’s occupation...
06 Aug Azerbaijan v. Armenia before the European Court of Human Rights: The Protection of Property Rights in Occupied Territories
...Georgia (para 145-222), however, it fell short of comprehensively assessing Russia’s formal and informal occupation policies. In this context, the Court needs a new perspective and framework to deal with the protection of property rights under military occupation. In this author’s view, the Court should treat massive and systematic property rights violations under military occupation differently from other cases. According to the International Red Cross, transformative and prolonged occupation policy, aside from administering a foreign territory, intends to ‘overhaul the institutional and political structure of the occupied territory, often to...
03 Apr Symposium on Military AI and the Law of Armed Conflict: Bridging the Legal Gap Between Principles and Standards in Military AI – Assessing Australia’s ‘System of Control’ Approach
...‘system of control’ is proposed to operate with respect to the adoption and use of MAI, this post will also consider legal challenges and some key risks and benefits of adopting such an approach. It ultimately concludes that this system has utility in furthering the conceptual approach to the meaningful human control of AWS, albeit with need for further refinement. What is the ‘System of Control’? The system of control offers a methodology to operationalise legal concepts and ensure levels of human control as mandated by law. Separate considerations regarding...
25 Jul Three Aspects of the Relationship Between IHL and the Convention in Ukraine v. Russia (re Crimea)
a forum for the resolution of general international law questions. Hence it adopts this ‘reader’s approach’ of applying IHL with the caveat that its fundamental implicit assumption that Crimea is occupied should be relegated to the legal value of obiter dictum when it comes to the ‘the issues pertaining to Crimea’s status under international law’ (para 919). This approach can be translated as a relinquishment of authority to other international courts (ICC and ICJ) or other international institutions such as the UN (para 918). The Court’s approach, which applies IHL...09 Jan Is the EU Adopting a Double-Standards Approach toward Israel and the Palestinian Territories? (Part 2)
[Lorenzo Kamel, Ph.D., is a Research Fellow at Bologna University’s History Department and a Visiting Fellow (2013/2014) at Harvard University’s Center for Middle Eastern Studies.] My previous post analyzed the EU’s approach towards Northern Cyprus and Western Sahara. This post will focus on the Palestinian Territories and the EU’s approach towards Israel’s policies in the area. The Palestinian Territories represent a “sui generis case” among most of the “occupations” currently in place in different parts of the world. Not only in consideration of how long this occupation has been prolonged,...
31 Jul A Path from Ukraine to Iran: A Special International Tribunal for Criminal Prosecution of Israel’s Aggression
Set Aside Immunities According to one approach, a tribunal established via any of the above-mentioned pathways could potentially possess a sufficiently international character to disregard immunities in the prosecution of international crimes (see, among others, here, p. 7). This approach seems valid when considering functional immunity and its exclusion before such a tribunal. The International Law Commission (ILC) has examined whether individuals accused of international crimes may invoke functional immunity before foreign courts. According to the ILC, functional immunity does not apply in criminal proceedings before foreign national courts for...
30 Apr Beyond Territoriality: Symposium on Jurisdictional “Hooks” for (Extraterritorial) Human Rights Obligations – Why We Need a Firm Justificatory Basis for Extraterritorial Human Rights Obligations and How We Could Get There
question in concrete cases. And Why Does It Matter? From an abstract point of view, the problem of extraterritorial human rights obligations illustrates how societal transformations—be it increased mobility, globalization, or new technologies—challenge traditional frameworks, paradigms, and concepts of law. In addressing these challenges, an interdisciplinary approach is needed, which allows a comprehensive perspective on the approach law takes. The aim must be to substantiate, from an ethical perspective, universal obligations in the framework of positive law. The questions behind the extraterritorial applicability are not new ones—the distinction between ‘insiders’...