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Search: Affective Justice: Book Symposium: A Response

22 Mar

Over the past couple of years, a number of scholars — including me — have debated whether IHL implicitly authorises detention in non-international armed conflict (NIAC.) The latest important intervention in the debate comes courtesy of Daragh Murray in the Leiden Journal of International Law. As the article’s abstract makes clear, Murray is firmly in the “IHL authorises” camp: On the basis of current understandings of international law – and the prohibition of arbitrary detention in particular – it is concluded that international humanitarian law must be interpreted...
22.03.17 | |

07 Jun

The Office of the Prosecutor has filed its response to Libya’s challenge to the admissibility of the cases against Saif Gaddafi and Abdullah al-Senussi. There are a number of interesting aspects to the response. First, it says nothing about the case of al-Senussi. That’s a curious omission, given that the response specifically points out with regard to Saif (para. 41) that he remains in the custody of the Zintan rebels, making it possible that Libya is “unable” to prosecute him. If there is an open question about Libya’s ability to...
07.06.12 | |

23 Nov

[ Frans G von der Dunk holds the Harvey & Susan Perlman Alumni and Othmer Chair of Space Law at the University of Nebraska College of Law.] The contribution of Professor Freeland to the important debate on the legal aspects of private manned spaceflights, as per his article ‘Fly Me to the Moon: How Will International Law Cope with Commercial Space Tourism’ is a thoughtful and enlightening exposé of some of the key legal issues involved in that debate, and I very much agree with the general thrust...
23.11.10 | |

01 Mar

It’s an honor to have two so distinguished scholars comment on my article. As always, I learn from reading their commentary and I thank each for his insights. Two quick reactions. First, Professor Johnson raises an interesting semantic question (which I do not address in the article): If a state “unsigns” a treaty, is it still a signatory? Professor Johnson is surely correct that a state cannot re-write history by purporting to expunge its signature as a matter of official record. Further, liability that a state incurs...
01.03.10 | |

16 Apr

[David Orozco is an Assistant Professor of Business Law at Michigan Technical University] Professors Bird and Chaudhry provide an insightful and timely analysis of European Law related to the repackaging and relabeling of grey goods, specifically pharmaceutical products. The analysis navigates readers through the morass of legal confusion and uncertainty in this area of international law. A couple of questions were raised by the paper that I would specifically like to address to the authors. First, given that the property system has provided little legal certainty in this...
16.04.10 | |

08 Dec

[Marko Milanovic is a Lecturer in Law at the University of Nottingham School of Law.] In their timely article Brilmayer and Tesfalidet address an important issue of general international law – when should states bear obligations to either put an end to or not contribute to violations of international law by other states, even when the obligation in question is not owed to them specifically. They challenge the orthodox view that by and large it is not any one state’s business whether third states comply with their obligations...
08.12.11 | |

01 Mar

...of Justice (ICJ), assuming the proper jurisdictional and other requisites are met. The “circumstances precluding wrongfulness” provisions of the International Law Commission’s 2001 draft on State responsibility provide the following among such circumstances: consent, force majeure, necessity—and self-defense “in conformity with the Charter”. All could be invoked as defenses by a person accused of having committed the crime of aggression before a trial chamber of the ICC which would presumably have to decide on the merits of such defenses and, in that event, would inextricably be called upon to decide...
01.03.10 | |

20 Nov

...of the applicable law. Like the European Court of Justice, Professor de Wet seeks to apply European legal standards to the Security Council context: here, the right to effective judicial protection under EU law. Yet it is important to ask: is judicial review really an appropriate model of recourse against Security Council decisions? One need only contemplate the likelihood of the European Court of Justice being able to achieve the hurdle it sets for itself (and other domestic courts) in paragraph 115 of the Kadi II judgment (namely, to obtain...
20.11.13 | |

21 Oct

Elena Baylis Thanks to Opinio Juris and to YJIL for giving me the opportunity to comment on Tara Melish’s article, From Paradox to Subsidiarity: The United States and Human Rights Treaty Bodies. I have long been a fan of Tara’s work, and so it’s a pleasure to have the chance to respond to her new piece. In this article, Tara persuasively argues for two fundamental shifts in our understanding of the “U.S. human rights paradox.” She claims: 1. That the US position on international human rights is...
21.10.09 | |

15 Apr

As with the earlier comments by Ed Swaine, I greatly appreciate Michael Ramsey’s astute observations regarding how political commitments fit into the constitutional discourse. I’ve endeavored to provide my initial responses to each of his suggestions below, although surely Duncan and I will build from his comments as we develop our theories going forward. We are pleased that Professor Ramsey agrees with our overarching proposition that the practice of making political commitments should be subject to analysis on a constitutional dimension. Our disagreements, therefore, primarily lie in constitutional methodology. How...
15.04.09 | |

01 Mar

[Anthony Clark Arend is a Professor of Government and Foreign Service at Georgetown University]. When the Obama Administration came into office over a year ago, it was faced with a daunting task. The previous Administration had run rough-shot over international law dealing with the use of military force. A man that would be Attorney General would call the Geneva Conventions “quaint,” torture would be defined away by the Vice President and others, the United States would launch an invasion of Iraq in a move that many believed...
01.03.10 | |

10 Jun

Odette Lienau’s Who is the “Sovereign” in Sovereign Debt? provocatively argues that Chief Justice Taft’s method of analysis in his 1923 arbitral award in the so-called Tinoco arbitration offers a useful approach to controversies over so-called odious debts owed by states, that is, debts incurred for purposes unrelated to the well-being of the population of the state responsible for the debt. Lienau argues that Taft applied what she calls a “rule of law” approach, making the enforceablility of the obligations in question in that arbitration dependent upon the compliance of...
10.06.08 | |