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Search: Affective Justice: Book Symposium: A Response

27 Feb

...League of Nations report and the Harvard commentary during the drafting of what would become the High Seas Convention’s definition of piracy. To her credit, Maggie acknowledges (in the article in the Journal of International Criminal Justice she mentions in her comment) that the Harvard commentary does not limit the “exception” to piracy to recognized belligerencies. But she misunderstands the nature of belligerent recognition (emphasis mine): The commentary to the Harvard Draft suggests the ‘private ends’ requirement was originally intended to exclude from the definition of piracy only the acts...
27.02.13 | |

11 Oct

In a prior post, I responded to some of Kevin Heller’s criticism of the professors’ amicus brief recently filed in the Nestle ATS case. Specifically, that post addressed issues arising from the Rome Statute of the International Criminal Court. Here I’ll take up Kevin’s criticism based on rulings of the International Criminal Tribunal for the former Yugoslavia (ICTY). To frame the argument, it’s important to emphasize that, as Julian Ku noted earlier, the brief does not see the ICTY as a primary source of customary international law. Customary...
11.10.11 | |

20 Dec

[Chris McQuade is a Senior Teaching Fellow in Law at the University of Portsmouth. He holds a PhD in International Law from the University of Sussex and researches in the fields of public international law, international humanitarian law and international and domestic human rights law.] In response to the October 7 attack by Hamas, the Israeli army has engaged in an intense military campaign in the Gaza strip over the past three months. As the campaign has escalated in its ferocity, so too has criticism of the Israeli response (among...
20.12.23 | |

24 Jan

view.. (iv) ‘Higher sentence’ – ‘better justice’ Finally, Heller’s theory operates on the critical assumption that a justice system based on ‘higher sentences’ provides better and more efficient justice than a system with potentially lower sentences. This vision appears to go against the very rationales of sentencing which typically preserves a great degree of flexibility in order to pay adequate tribute to individual interests. It is further ill-suited to provide an appropriate logic for forum choices in situations in which sentence and penalties may be of lesser importance, such as...
24.01.12 | |

30 Jul

...the U.S. taking liberties with the principle of distinction will cause the next Srebrenica or that better U.S. targeting behavior will prevent it. But if the US is, indeed, the indispensable nation for promotion of international human rights, then just consider how Abu Ghraib and enhanced interrogation techniques affected the ability of the U.S. to complain about torture elsewhere and how that disability affects the will and ability of the international community to bring torturers to justice. Finally, Mike makes an interesting point in speculating that what people really object...
30.07.12 | |

31 Jan

...two tribunals that Jacob identifies as immune from competition and therefore at risk of “market failure.” (pp.444-45) The recently-concluded Treaty of Lisbon delegates new powers to the European Court of Justice (ECJ) to interpret the now legally binding Charter of Fundamental Rights of the European Union as well as EU criminal justice agreements. A similar trend is underway in the European human rights regime. Until 1998, the jurisdiction of the European Court of Human Rights (ECHR) was optional. That changed with the ratification of Protocol 11, which made jurisdiction compulsory....
31.01.08 | |

22 Feb

Jonathan Turner Many of the points made in this post were addressed in the Statement submitted by ELNET and UKLFI to the ICJ under Practice Direction 12, particularly at paras 36-74: https://www.dropbox.com/scl/fi/engprq05vstavki5829h9/ELNET-Submission-to-ICJ-29-9-23-final.pdf?rlkey=sihxdzppww1wrw6i9ac2ptqlh&dl=0 Tamás Hoffmann I mostly agree with the analysis, but I have one minor correction. I think that the reference to Hungary is not really appropriate. Unfortunately I haven't read Wheatley's book yet but this short allusion to Hungary's statehood during the Austro-Hungarian Monarchy misses a crucial point: it was a monarchy, to be more precise, an Empire where...
22.02.24 | |

06 Feb

Chris Borgen taxes me with not paying enough attention to the ways in which the responses of non-Anglo-American powers to the Anglo-Americans may reflect their own hopes and plans for the world, rather than a simple dislike of Anglo-American plans or values. I think the two are connected; people dislike the Anglo-Americans both because they don’t like what we have in mind and because our plans and activities frustrate hopes and wishes of their own. God and Gold deals with these issues at some length in the last section; rather...
06.02.08 | |

08 Dec

[Chiara Giorgetti is an Adjunct Professor at Georgetown Law Center and a member of the International Arbitration Group at the Washington, D.C. office of White & Case.] I am very pleased to join this discussion on Professor Lea Brilmayer and Isaias Yemane Tesfalidet’s upcoming article on third State obligations and the enforcement of international law. In their article, Brilmayer and Tesfalidet argue that States have a positive obligation not to contribute to another State’s violation of a victim’s legal rights, and propose that liability is triggered only when...
08.12.11 | |

07 Jul

I am very pleased to be able to comment on Ingrid Wuerth’s recent article, Foreign Official Immunity Determinations in U.S. Courts: The Case Against the State Department. As readers of this blog are aware, the Supreme Court held in Samantar v. Yousuf that the Foreign Sovereign Immunities Act (FSIA) generally does not apply to suits against individual foreign officials, and that the immunity of such officials is to be determined instead as a matter of common law. The Executive Branch is now claiming (as it claimed before Samantar)...
07.07.11 | |

11 Feb

...strictly speaking, be a loss of a state’s reputation for compliance with international law, but it might nevertheless be a costly loss of reputation for cooperation. This certainly seems to be what has happened to the United States with respect to both the ICC and the Kyoto Protocol. So as you suggest, Roger, there is a close connection between accepting an international legal obligation and complying with it. My book does discuss how joining a treaty can help a country to gain reputation, and how the presence of a treaty...
11.02.08 | |

28 Sep

[Opinio Juris Note: Thanks to everyone, especially David Moore, for participating in the online workshop this week. Here is David’s last post and the last contribution to what has been a very interesting and useful workshop.] Marty is, of course, right that the issue before the Court in Sosa was not whether all CIL qualifies as federal common law or whether the creation of CIL-based common law requires positive authorization. The issue was whether the ATS supports common law claims based on CIL. That does not mean, however,...
28.09.06 | |