I have posted a long new essay on SSRN, my contribution to a fantastic collection of essays that OJ's own Jens Ohlin is editing for Cambridge University Press, The Theoretical Boundaries of Armed Conflict & Human Rights. The essay is entitled "The Use and Abuse of Analogy in IHL," and here is the abstract: It is a truism to say that...
[Larry Catá Backer is W. Richard and Mary Eshelman Faculty Scholar Professor of Law and International Affairs at Penn State Law.] On December 17, 2014, the Presidents of the United States of America and of the Republic of Cuba announced an intention to move toward the normalization of relations between their countries. The two statements reflected the quite distinct conceptual frameworks from...
Christopher Kutz, Professor of Law in the Jurisprudence and Social Policy Program at Berkeley Law School, has a fascinating new essay examining the possibility that "norms" against torture and assassination have died in the United States in the aftermath of the 9/11 attacks. Kutz is not writing to support the CIA interrogation program or the US government's use of assassination, but he...
Almost three years ago to the day, I critiqued an article by Ashley Deeks that argued the right of self-defence under Art. 51 of the UN Charter extends to situations in which states are "unwilling or unable" to prevent non-state actors from using their territory to launch armed attacks. As I noted in my post, Deeks herself admitted that she had "found...
The government of Vietnam appears to have filed a statement of its legal views with the UN Convention of the Law of the Sea arbitral tribunal formed to resolve the Philippines-China dispute in the South China Sea. It is a little unclear exactly what Vietnam has filed. According to its Ministry of Foreign Affairs website: In response to the question on Viet...
I don't have much useful to add to the already voluminous online debate on the legality or morality of the U.S. Senate Intelligence Committee's report on the CIA's "enhanced interrogation" or "torture" program. In this post, I want to focus on an interesting data point coming out of this debate. As best as I can tell, international law's position that torture...
It looks like the US Navy is going to go ahead and start deploying its new laser cannons to the Persian Gulf next year, according to this Washington Post report. The Navy has been developing this weapon for years as a cheaper alternative to missiles for attacking smaller targets, especially drones (My 2005 self is still kind of amazed at my...
I am very rarely shocked, but that was my response to yesterday's editorial in the New York Times by Anthony Romero -- the Executive Director of the ACLU -- arguing that Obama should pre-emptively pardon all of the high-ranking officials responsible for the Bush administration's systematic torture regime at Guantanamo Bay, Bagram, Abu Ghraib, various Eastern European black sites, etc. Here is a...
Things are not going well for Ukraine these days as Russia has managed to solidify its control over Crimea and is continuing support for breakaway regions in Eastern Ukraine. It is very hard to justify the legality of Russia’s actions, so it is not surprising that Ukraine is looking for any and all international fora to sue Russia. As usual, the...
The UNCLOS arbitral tribunal formed to hear a dispute brought by the Philippines against China has set December 15 as a deadline for China to submit a legal brief or memorial. As most of our readers know, China has steadfastly refused to even participate in the arbitral process. It has not selected any arbitrators and it did not attend the...
Way back in 2010, the U.S. Court of Appeals in the Second Circuit held that corporations cannot be held liable under customary international law in ATS lawsuits. That decision, which was the original basis for the Supreme Court's consideration of the Kiobel case, has remained the law of the Second Circuit (New York, Connecticut, Vermont) though no other circuit court...
As a number of commentators have recently noted, the latest report on the OTP's preliminary-examination activities indicates that the OTP is specifically considering whether US forces are responsible for war crimes relating to detainee treatment in Afghanistan -- something it only hinted at in its 2013 report. Here are the relevant statements (pp. 22-23): 94. The Office has been assessing available information relating to...
