Weekend Roundup: March 10-16, 2012

Welcome to the second edition of our Weekend Roundup. Last week’s edition can be found here.

Last weekend, Claude Bruderlein’s guest post discussed the growing tension on the means and methods to provide humanitarian protection in Syria.

Two posts built on posts from last week. Picking up on Anthony Colangelo’s guest post arguing against applying the presumption against extraterritoriality to the ATS, John Knox’ guest post added arguments why the presumption should not apply, but pointed to other arguments that the Court might use to rein in the scope of the ATS. Kevin Heller revisited his post on the legality of preventive self-defense.

From Monday onwards, Opinio Juris brought you a book symposium on the recent book by Professor Tai-Heng Cheng of New York Law School, When International Law Works: Realistic Idealism After 9/11 and the Global Recession. Tai-Heng Cheng introduced his book here. Julian Ku described the main argument of the book in a “short bloggish description” as

We should follow formal, positive international law most of time, except when we shouldn’t. In those cases, we should find a way to do the right thing without undermining the overall international legal system, which has an inherent moral value in maintaining minimum world order.

Julian Ku questioned whether the theory could predict particular legal decisions, to which Tai-Heng Cheng responded that his theory was not a falsifiable hypothesis but only aimed “to explain how the international legal system works and to help decisionmakers make decisions in international problems, in order to justify international law’s claim to regulate international matters”. They then exchanged views on whether positivism and rationalism predict or not.

Ralph Wilde liked how the book “offered a way of thinking about international law that allows us to take the most useful insights from recent US theoretical debates, and also allows us to move on from the seeming impasse that these debates, read in isolation and on their own terms, seem to suggest”, but missed the perspective of the feminist theory or TWAIL. Tai-Heng Cheng’s response is here.

Rob Howse and Tai-Heng Cheng exchanged views on when morality considerations can enter in international adjudication.

Chester Brown’s first post also addressed the question how considerations of morality and effectiveness feed into treaty interpretation. He debated the analysis of Nicaragua and Loewen. He also considered the Nuclear Tests case in light of the justificatory framework proposed in the book. In a second post, he applied the framework to the Advisory Opinion on the Legality of the Threat or or Use of Nuclear Weapons. Tai-Heng Cheng’s responses can be found here and here.

Our final commentator, Hari Osofsky, suggested examining whether and when international law works for less powerful actors. She also proposed applying the justificatory theory to examine decisionmaking by actors that lack formal power in international decisionmaking, but still play an important role in it. Referring to the comments by Ralph Wilde and Rob Howse, she added that these actors might challenge the understanding of which values are considered “universal”. Tai-Heng Cheng’s response, which includes references to some of his other research, can be found here.

On Wednesday, Kevin Heller reported on the ICC’s landmark first judgment in the Lubanga case. Jens Ohlin and Kevin Heller posted on the relevance of the Control Theory for the interpretation of “co-perpetration” in Article 25(3)(a) of the Rome Statute, on which the judges in Lubanga were split 2-1. Our discussion of the Lubanga judgment will continue over the weekend and early next week.

Later next week, we will have a symposium on three articles of the latest issue of the Leiden Journal of International Law, two (1, 2) examining the ICJ’s Nicaragua judgment 25 years on and a third on the modes of liability in international criminal law.

We hope you feel inspired by what you have read on Opinio Juris this week. If you are, the call for papers for the International Law Weekend 2012 to which Peggy McGuinness drew our attention here may interest you.

We’d like to thank all our guest contributors for their efforts this week and wish all our readers a nice weekend!