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Search: crossing lines

06 Jul

...order and seeks ‘hard guarantees in the form of legal norms that protect the interests of the different actors’ as well as hierarchies with clear lines of authority. Otherwise, the necessary support for international cooperation would be undermined. De Boer is in good company here – not only in that of the many constitutionalists populating the field today, but also of those pluralists who, afraid of the potentially radical implications of their idea, opt for some ultimate relief through a common legal frame. Such a frame is indeed immensely appealing...
06.07.12 | |

28 Oct

...evidence of the drones’ threat to bolster any attack it makes. On the other hand, is China overreacting to call those Japanese threats an “act of war”? I suppose that is technically true if one accepts that China’s drones are flying over Chinese airspace. Still, it is hard to imagine that downing a drone (where no one is hurt or killed) could have the same significance as downing a manned plane. I think Japan is trying to test China, and draw lines on matters that wouldn’t necessarily escalate into armed...
28.10.13 | |

29 Mar

...forms of noncompliance that may be beneficial, but I do not consider them at length. Professor Pauwelyn first claims that I go “too far by underestimating the flexibilities and exit options that exist within the system of international law.” What I describe as noncompliance, he sees as “flexibilities and exit options perfectly permitted and accepted within international law.” I wish more people thought along those lines, and I wish it were that international law were more like what Professor Pauwelyn describes. Unfortunately, international law and international legal scholars appear to...
29.03.07 | |

09 Oct

...for example, Congress could have added language to the Military Commissions Act of 2006 along the following lines: “In the event of a conflict between the Geneva Conventions and the procedures specified herein, courts shall apply the procedures embodied in this Act.” Such language would preclude courts from applying the Geneva Conventions by making clear that Congress intended to supersede the Conventions as a matter of domestic law. However, the Military Commissions Act of 2006 does not contain any such provision. Section 3 of the Act creates a new Chapter...
09.10.06 | |

01 Nov

...can’t judge the intentions of another country by looking at its force — like by looking at its force posture. So it’s a challenge to identify effective, confidence-building measures in cyberspace. We’ve got to find a way. For example, the United States is working closely with Russia to reach an agreement that would establish links between our computer emergency response teams and our nuclear risk reduction centers to build cooperation and to set up lines of communication in the event of an alarming incident. . . . The tactic of...
01.11.11 | |

27 Jan

...than “politicizing” the Court (in order to assuage its legitimacy-problem), there is something important to be said for a more minimalist, indeed, “weak” ECJ. The democratic benefits of allowing judges to enter dissenting opinions seem uncertain in the EU-context. You do not want a “supreme” ECJ, which sharply divides over ever more, and ever more controversial, but hugely consequential, constitutional-legal issues (e.g. the “true” balance between market-freedoms and social rights) along, say, national lines or those of “old Europe” versus “new Europe.” You may not want to jeopardize direct effect...
27.01.09 | |

31 May

...a Sovereign Debt Treaty.” Kevin posted on Regulation 55 of the Rome Statute in the context of the Gbagbo proceedings and what he terms the irrelevance of the confirmation hearing. He also posted on when the left shoots itself in the foot (IHL version). We had two guest contributions in the last two weeks. The first, from Rick Lines, Damon Barrett and Patrick Gallahue was entitled: The Death Penalty for Drug Offences: ‘Asian Values’ or Drug Treaty Influence? Marina Aksenova posted on Five Questions on the Colombian Sentencing Practice and...
31.05.15 | |

08 Mar

...But even after this admission, this report suggests Texas has changed its position and will contest the authority of the President to order it to comply with the ICJ order. According to its spokesman, [Texas] respectfully believe[s] the executive determination exceeds the constitutional bounds for federal authority. The State of Texas believes no international court supersedes the laws of Texas or the laws of the United States. This statement (thanks to Carlos Vazquez for the heads up) suggests two lines of resistance (further suggested by Lederman’s pointer): (1) that the...
08.03.05 | |

02 Oct

...pose to U.S. foreign relations), while leaving open other potential applications of the ATS, such as to U.S. citizens and corporations (for which the United States may have some responsibility) and to foreign citizens residing in the United States (on the ground that the United States has an interest in not being a haven to human rights abusers). Although it is hazardous to make any predictions from oral argument, a number of the Justices during the reargument in Kiobel appeared to be searching for an intermediate approach along these lines....
02.10.12 | |

09 Nov

...in special subject areas such as human rights or international trade, how to deal with time factors, whether particular considerations arise if international organisations are involved, whether there is a useful potential crossover from the originalist/constructionist debate in constitutional interpretation, and whether an evolutionary method of interpretation forms a distinct approach. The Guide takes up some of these issues but much of its consideration of the topic is set in the context of the VCLT provisions. Perhaps now is a good opportunity to take stock of new lines of investigation....
09.11.12 | |

11 Mar

...the presumption to restrict ATS claims, then, it would have to introduce a new wrinkle or two. It could say that it applies to jurisdictional statutes (or at least to this one), or it could adopt the presumption as a prudential rule suitable for common-law claims. Once it found a basis for using the presumption, it could say that the presumption is overcome for the high seas but not for foreign territory, along the lines of the Kavanaugh dissent in Doe VIII. In itself, such an outcome wouldn’t be all...
11.03.12 | |

13 Apr

...to the concern that customary international law is anti-democratic: Indeed, customary international law bears the hallmark of democratic legitimacy. The U.S. is a key participant in the consensus-building process inherent in the creation of customary norms. Thus, these legal norms are fashioned with the input of U.S. elected and appointed officials, who represent and answer to their constituents at home. As Dean Koh acknowledges, Congress may override a customary international law norm where Congress’s intent is clear, thereby addressing any concern regarding democratic oversight. Across party lines, the Executive Branch...
13.04.09 | |