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Search: Affective Justice: Book Symposium: A Response

13 Jul

...emerge when the institution in question is widely used rather than marginal. Response: What a horrendous state of affairs it would be if these military commissions (even in their third generation) were widely used, let alone used at all. Some still work to stop these conviction machines. See Flawed Justice for Terror Suspects, Toledo Blade, June 17, 2012 (http://www.toledoblade.com/Op-Ed-Columns/2012/06/17/Flawed-justice-for-terror-suspects.html) (ii) Any given institution will have many consequences, some of them opposed in their tendency. It is imperative, therefore, to look at their net effect. [I would add that we should...
13.07.12 | |

03 Jan

...by the editors, and so forth. The journal may even have a policy never to publish such response pieces, while of course allowing for criticism of previously published work in separate, self-contained articles. Bad idea? Probably. Out of bounds? No, as there are plenty of other avenues of expressing legitimate disagreement. Similarly, with Lawfare, you can always write a post in response on OJ, I can write one on EJIL Talk, somebody else can create their own blog, use Facebook or whatever. I just don't see why you think that...
03.01.12 | |

19 Dec

...mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country, occupied or not, are prohibited, regardless of motive.” Here is Scott Horton, who discusses the case in detail at Harpers today: The facts developed in the Rahmatullah case have clarified the circumstances surrounding one of the notorious Justice Department memoranda issued during the Iraq War. In March 2004, Jack Goldsmith, then head of Justice’s opinion-writing arm, the Office of Legal Counsel, was asked...
19.12.11 | |

30 Jul

...regulative goal is to spell out what it means to do justice to distinction and proportionality by protecting civilians as much as militarily possible. It does not spell out how the attacker’s obligations fall by the wayside if the presence of the civilian population interferes with a belligerent’s ability to conduct effective military operations. A second concern is not that warnings are used to weaken other legal obligations, but that the practice itself violates international law. In circumstances in which the civilian population has in fact no means to leave...
30.07.14 | |

10 Apr

[Philip Allott is Emeritus Professor of International Public Law at the University of Cambridge.] Interpretation of any text – religious, political, historical, scientific, literary, artistic, legal – raises profound philosophical problems. Interpretation of a legal text is in a class of its own, because it can have direct and substantial social effects, determining people’s lives. The philosophy of legal interpretation is the philosophy of a fundamental aspect of social existence. The philosophical problems of interpretation stem from the fact that interpretation is a re-presentation of a presentation of...
10.04.15 | |

09 Apr

[Fuad Zarbiyev is an Associate in the International Arbitration Group of Curtis, Mallet-Prevost, Colt & Mosle LLP.] The interpretation discourse in modern international law is dominated by a textualist paradigm. This claim may seem empirically wrong if it is taken to mean that nothing other than eo nomine textual arguments features in the international legal discourse. After all, the interpretive regime set forth in the Vienna Convention on the Law of Treaties seems to put the terms, the context, and the object and purpose of the treaty on...
09.04.15 | |

28 Jul

I will join the chorus of praise for this terrific book. But I want to add briefly to Peter’s critique of Ben’s premise that the current threat from transnational terrorism has us in a “long war,” by looking at what this means for broader foreign policy – one that encompasses, but it is not driven by, domestic legal policy. The book correctly, and refreshingly, recognizes two important points: (1) that addressing the threat of terrorism requires approaches that encompass domestic law enforcement and regulation as well as applications of armed...
28.07.08 | |

08 Apr

[Julian Arato is an Associate-in-Law at Columbia Law School.] Interpretation in International Law is something of an iconoclastic volume, from its critical ethos to its provocative structure around the metaphor of the game. The object of its revisionism, above all, is an apparently stagnant formalism that seems too prevalent in the theory and practice of interpretation in international law today. Symbolic of this antiquated formalism – for the editors and for many of the contributors – are the rules of interpretation embedded in the Vienna Convention on the...
08.04.15 | |

07 Apr

...Law’s Main Challenges” in D Armstrong (ed), Routledge Handbook of International Law (Routledge 2009) at 404. Schachter’s “invisible college” of international lawyers seems to have largely disappeared and has been replaced by a patchwork quilt of specialized international lawyers. Diverse interpretive communities have come to play an increasingly important role in treaty interpretation. This development raises concerns about the unity of international law, not just in relation to its interpretive methods, but also in relation the system as a whole. The challenge going forward is how to achieve a reasonable...
07.04.15 | |

18 Oct

[Jan Wouters is Professor of International Law and International Organizations, Jean Monnet Chair Ad Personam EU and Global Governance, and Director of the Leuven Centre for Global Governance Studies and Institute for International Law at the University of Leuven (KU Leuven).] Once we conclude that IN-LAW is not devoid of impact and cannot be ignored as a normative process, the question of the accountability of the involved actors, processes, and output may be raised. This question is addressed in Part IV. Eyal Benvenisti (Chapter 13) ‒ one of...
18.10.12 | |

17 Oct

[Tai-Heng Cheng is the international disputes partner of Quinn Emanuel Urquhart & Sullivan, LLP in New York. Views expressed here do not necessarily reflect those of his firm or its clients.] Congratulations are due to the authors of Informal International Lawmaking, and especially to the editors, Professors Pauwelyn, Wesssel and Wouters, for their keen observations and appraisals of the global decisionmaking processes as they operate today. Opinio Juris has assigned me the task of commentating on the legal and normative nature of international decisionmaking processes that the authors...
17.10.12 | |

21 Aug

As we have discussed, Part I of Posner and Vermeule’s book offered broad theoretical justifications for the historical deference that courts have afforded the executive in times of emergency, and rebutted systemic arguments of civil libertarians. In Part II of their book, Posner and Vermeule apply their tradeoff thesis to specific contexts. They emphasize that they do not endorse or criticize any particular counterterrorism measure used by the Bush administration. Rather they address the larger contextual question of the need for government to make tradeoffs, affirm the historical view that...
21.08.07 | |