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Search: Affective Justice: Book Symposium: A Response

07 Feb

...result in a lowering of regulatory standards, exposing the host jurisdiction to little additional threat of systemic risk, fraud or other regulatory failures. The problem is that developing metrics of comparability is difficult, and efforts to date have been ad hoc. Such determinations require an analysis that go beyond examining what rules are “on the books” to the effectiveness of the regulator in promoting compliance with such rules (see, e.g., the literature on enforcement intensity) and the relative sophistication of affected market participants. Until we develop a better understanding of...
07.02.11 | |

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 | |

06 Nov

...Prevention of Genocide Juan Mendez. It is also the subject of a standing and reaffirmed order by the International Court of Justice against Azerbaijan to end the blockade, which Azerbaijan has refused to comply with.  Nor does Dr Bagheri take into account the widely reported background of long-standing Azerbaijani state-sponsored incitement of hatred against Armenians when Nagorno-Karabakh fell under Azerbaijan’s exclusive control (see e.g. ECRI Reports 2002, 2006, 2011, 2016, 2023; CERD Committee 2022, para. 4(d)). Live witness testimony during the mass exodus further confirms the Armenians’ experience of having left...
06.11.23 | and |

07 Oct

[Odile Ammann is a postdoctoral researcher at the University of Zurich, Switzerland.] “Customary international law cannot be interpreted because it’s not written.” I have heard this objection many times, including from the most seasoned international lawyers. While the interpretability of customary international law (CIL) may seem less obvious than that of written laws, I do not think that the written or unwritten character of a legal act impacts its interpretability. Nina Mileva and Marina Fortuna’s recent post, which forcefully highlights the interpretability of CIL, is thus more...
07.10.19 | |

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 | |

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 | |

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 | |

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 | |

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 | |

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 | |

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 | |

11 Jun

My thanks to Mohsen al Attar for his comments on my Article, and to the editors of Opinio Juris and the Yale Journal of International Law for organizing this symposium. Mohsen al Attar’s comments bring the historical critique of global capitalist arrangements to the contemporary project of human rights, particularly the under-recognized “sub-set” of economic and social rights. He responds to the conceptual micro-study of the minimum core idea, demonstrated in Parts II to IV of my Article, by emphasizing its final conceptual step. This analysis moves upwards and outwards,...
11.06.08 | |