Student Features

Student Features

The Dynamic Law of Occupation: Inaugurating International Thematic Constitutionalism

Law, by its nature is not static, but dynamic. This creates questions of interpretation of documents or institutional arrangements that have been shaped or taken place hundreds of years ago or under different legal and factual circumstances. In U.S. constitutional law, this discussion has been framed as the “living constitution” debate. Could there also be an equivalent “living constitution” debate in international law? The answer appears to be yes.

The U.N. Charter is largely viewed as an international constitution. Moreover, on account of the views held by various international judicial organs, international documents are subject to an evolutionary interpretation. The Charter is a “living” constitution, in essence introducing a “living international law” debate. This is reinforced by voices in international theory calling for international law’s “functional” reading. This functional element is nothing more than a re-baptized dynamic approach to the international legal framework.

Such an approach is sometimes called for by the exigencies of international developments. In a highly decentralized international community, this “living international law” debate faces the danger of losing its vigor. This debate must be included in a more general, systemic framework. Detailing how these dynamic interpretational endeavors have to take place in order not to end up being arbitrary and norm-destructive.

This holds a particular importance in international law fields which have traditionally appeared to be highly positivist. It is these fields, where change is bound to meet hurdles and where the incorporation of new elements is not self-evident, that provide the best indicator of if and how the living international law continues to respire. The law of occupation is such a field. It has been traditionally more reserved and reluctant to flexibility. Two recent cases seem to portray the opposite; both of them involve prolonged occupations in the Middle East. The present note will analyze how they aspire to influence the law of occupation, with human dignity concerns being posed as the outmost limit of any dynamic interpretation endeavors

Moreover, the fact that human dignity serves as a guiding principle and ultimate limit in an international legal field not prone to change, awards a modulating role to the notion. International law is interpreted and shaped under its lens, the same way human dignity appears as a guiding principle in domestic constitutional orders. Thus, the dynamic approach of the law of occupation signals the dawn of international thematic constitutionalism.

Article Responses, Student Features

Conceptualizing the Shapeshifting Nature of Investment Law(yers)

Within international law, international investment law (IIL) has become one of the topics that is en vogue. This follows on the heels of two interrelated developments. First, the proliferation of international investment agreements (IIA), most in the form of bilateral investment treaties (BITs), others forming part of more encompassing trade and investment agreements. Second, following this increase in investment protection for investors, there has been a surge of cases that have been adjudicated before international investment tribunals.

The increasing practical importance of IIL has been accompanied by a (still) growing number of academic contributions. Adding to this literature is Jason Yackee’s Controlling the International Investment Law Agency, which makes an important contribution to this field—while steering clear of the controversy over whether the system is overly friendly towards investors. This brief comment will first outline the main arguments of Yackee’s article (I.) and then critique some of the arguments it makes, specifically around whether there is indeed a functional IIL agency and Yackee’s comparative analysis with domestic administrative agencies (II.), before offering some concluding remarks (III.).

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Student Features

International Law in Cyberspace: The Koh Speech and Tallinn Manual Juxtaposed

In 2011, the White House issued the International Strategy for Cyberspace, which noted that “[t]he development of norms for state conduct in cyberspace does not require a reinvention of customary international law, nor does it render existing international norms obsolete.  Long-standing international norms guiding state behavior—in times of peace and conflict—also apply in cyberspace.”  However, the document cautioned that the “unique attributes of networked technology require additional work to clarify how these norms apply and what additional understandings might be necessary to supplement them.”

On September 18, 2012, State Department Legal Adviser Harold Koh took an important step towards publically elucidating the U.S. positions on how international law applies to cyberspace. At a conference sponsored by United States Cyber Command (USCYBERCOM), Mr. Koh offered brief answers to what he labeled the “fundamental questions” on the issue.  He also identified several “unresolved questions” with which the United States would likely be forced to grapple in the future.  Since the speech had been fully cleared in the interagency process, it can be viewed as reflecting the U.S. Government’s views on the issues, not just those of Mr. Koh or the State Department.

The timing of the speech was propitious.  Less than three weeks earlier, NATO’s Cooperative Cyber Defence Centre of Excellence (CCD COE) had released a draft the long-awaited Tallinn Manual, due for formal publication in early 2013.  The Manual is the product of a three-year project sponsored by the Centre in which an “International Group of Experts” examined, inter alia, the very issues cited in the Koh Speech.  Participants included distinguished legal academics and practitioners, supported by a team of technical experts.  USCYBERCOM, the International Committee of the Red Cross, and NATO each provided an observer who participated actively throughout the project, albeit in a non-voting capacity.

The Tallinn Manual consists of “rules” adopted unanimously by the International Group of Experts that are meant to reflect customary international law, accompanied by “commentary” that delineates their legal basis and highlights any differences of opinion among the Experts as to their interpretation in the cyber context.  A select group of peer reviewers offered comments on the various drafts, as did a number of states that were willing to informally and unofficially do so.  The author served as Director of the Project.

The relative congruency between the U.S. Government’s views, as reflected in the Koh speech, and those of the International Group of Experts is striking.  This confluence of a state’s expression of opinio juris with a work constituting “the teachings of the most highly qualified publicists of the various nations” significantly enhances the persuasiveness of common conclusions. Of course, the limited differences that exist as to particular points of law render the respective positions on those points somewhat less compelling.

This article serves two purposes.  First, it functions as a concordance between the positions articulated in the Koh speech and those found in the Tallinn Manual.  The comparison is particularly apropos in light of the parallels in their content.  Second, drawing on the Tallinn Manual, the article provides analytical granularity as to the legal basis for the positions proffered in the Koh Speech.  In doing so, it usefully catalogues the various competing interpretive perspectives.  The article is crafted around Mr. Koh’s “Questions and Answers,” which are reordered topically and set forth at the beginning of each section.

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Book Reviews

Human Rights: A Reckoning – Book Review

“The Last Utopia” is a revisionist history of human rights. Samuel Moyn rejects the conventional wisdom that human rights surfaced as a reaction to the horrors of World War II, instead insisting that the movement did not emerge until the 1970s. By arguing that human rights achieved prominence only because other idealistic visions “imploded”, Moyn casts human rights as a romanticized afterthought, a movement that has “done far more to transform the terrain of idealism than . . . the world itself.”

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Recent Developments

Lenahan (Gonzales) v. United States of America: Defining Due Diligence?

The United Nations reports that the most common form of violence experienced by women around the world is physical violence inflicted by an intimate partner. On a global average, at least one in three women is beaten, coerced into sex, or otherwise abused by an intimate partner in the course of her lifetime.

Thus, it is all the more significant that in August 2011, the Inter-American Commission on Human Rights (“the Commission”) found that the United States violated the human rights of Jessica Lenahan and her three daughters in the first domestic violence case brought against the United States in an international human rights tribunal. The Commission’s decision confirmed the application of the due diligence standard to interpret the obligation of non-discrimination under the American Declaration on the Rights and Duties of Man. That obligation requires states to prevent, prosecute, and sanction acts of violence against women, including, in certain circumstances, acts of violence by private actors.

The Commission found that the United States’ failure to meet this standard resulted in violations of Lenahan and her daughters’ right to equality, right to life, and right to special protection as women and children. The decision stands in stark contrast to the U.S. Supreme Court’s 2005 ruling on the same facts in Town of Castle Rock, Colo. v. Gonzales, in which the Court held that the state generally has no duty to protect individuals from private acts of violence. This comment explores the effectiveness of the due diligence standard in the Commission’s merits report.

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