Thanks Ken. Let me try to clarify again. On one level, you’re quite right: many human rights advocates believe a new system of administrative detention – beyond the criminal law and beyond the Geneva regime – is not a good idea as a matter of policy. (I hasten to add many who are not human rights advocates think...
In the Wall Street Journal editorial Ken mentions below, Goldsmith and Posner argue -- in defense of their thesis that Europeans ignore international law if it is not in their interest to obey it -- that "when nations led by Europe created the International Criminal Court (ICC), they purported to limit the Security Council's power to delay or halt ICC...
The Yale Journal of International Law (YJIL), one of the world’s leading journals of international and comparative law, is pleased to continue its partnership with Opinio Juris in this second online symposium. This week, we will be featuring two Articles published by YJIL in Vol. 33-2, both of which are available here. Thank you to Peggy McGuinness and the other...
The Institute for War & Peace Reporting has an interesting report today on the Ugandan government's efforts to prosecute Kony and other LRA members in a special domestic court. According to the IWPR's report, the problem is not the lack of political will, but the potential retroactivity of the legislation necessary to make the Rome Statute's core crimes -- war...
The power of international law comes from our belief in it and the purposes it serves: the promotion of peace, human rights, prosperity and the natural environment. Beth Simmons in her thoughtful and well-written post suggests that we need empirical evidence of this belief. There is, however, plenty of evidence—indeed, the evidence is overwhelming, if not categorized and precisely quantified. We...
What will it take to engage in a constructive debate about the power and limits of international law in international affairs? One answer is a book like Mary Ellen O’Connell’s, which makes a compelling case that not only scholars but laypersons and decision makers should think deeply before they disparage the international legal system in its entirety. Mary Ellen’s book...
One of the most interesting jurisprudential aspects of The Power and Purpose of International Law is its explicit use of Hans Kelsen. I am among those Americans for whom Kelsen is a mostly forgotten figure in jurisprudence - and I realized reading this book that, while I have probably read much more than most American legal scholars of his jurisprudential...
Within the context of our roles as part of a research group at Princeton’s Center for Theological Inquiry, Mary Ellen and I have had many wonderful conversations about natural law as a source for international law. My sense is we both share the view that natural law could be such a source, and we have discussed various instances...
Despite the title of his post, I do not read Chris Borgen as a natural law skeptic! He accepts the existence of norms and principles that must be explained by theories other than positivism. He is just skeptical about the standard approach to explaining the source of natural law, namely, the use of the concept of the common...
At risk of distracting us too soon from the merits vel non of natural law, I wanted to take up another piece of Mary Ellen’s account – namely, her fairly positive outlook on the prospects of domestic court enforcement of international law. Despite the subject matter’s placement in the very last chapter of the book, Mary Ellen I think rightly notes:...
In working through an explanation for the source of international law’s authority in the international community, Mary Ellen O’Connell describes the important role of positive law but also shows its limits. For example, it is very hard to imagine a serious contention that it is somehow possible to legalize genocide or slavery through the mere fact of enacting positive law....
In response to Will Fettes’s thoughtful comment: The problem is not with positivism per se but positivism alone. By the 1960s, certainly in the United States there was a view that only positive law theory explained law and positive theory relied on the existence of the usual legal institutions—with their absence on the international plane, positivists could not understand how...
