... in the context of human rights litigation, but increasingly in many other contexts including the environment (under the Aarhus Convention: see Svitlana Kravchenko, The Aarhus Convention and Innovations in ... qualified and subjected... more
... in the context of human rights litigation, but increasingly in many other contexts including the environment (under the Aarhus Convention: see Svitlana Kravchenko, The Aarhus Convention and Innovations in ... qualified and subjected to fiduciary duties toward non-members. ...
T invasion and subsequent occupation of Iraq in 2003 provided a rare opportunity to examine the viability in the twenty-first century of a legal doctrine rooted in the military and political circumstances of the nineteenth century.1 The... more
T invasion and subsequent occupation of Iraq in 2003 provided a rare opportunity to examine the viability in the twenty-first century of a legal doctrine rooted in the military and political circumstances of the nineteenth century.1 The rarity of this opportunity is not a result of paucity of occupations, but of the prevalent disinclination of occupants to recognize their status as such.2 This article reflects on several key questions concerning the occupation of Iraq, not in an attempt to evaluate the occupants for their compliance with the law, but rather to study contemporary challenges to the law and possibilities for adaptations in the twenty-first century. The article addresses the beginning and end of the occupation in Iraq and potential preand post-occupation responsibilities (Part II), and examines the scope of authority of the occupants and of the UN Security Council in Iraq (Part III). Part IV concludes.
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In “Are There ‘Inherently Sovereign Functions’ in International Law?”, Frédéric Mégret provides a deeply insightful reflection on “the essence of the state” from the point of view of international law, outlining a theory about the... more
In “Are There ‘Inherently Sovereign Functions’ in International Law?”, Frédéric Mégret provides a deeply insightful reflection on “the essence of the state” from the point of view of international law, outlining a theory about the inherently sovereign functions in international law. He carefully identifies existing norms of international law that articulate certain public functions to be performed solely by the state rather than delegating them to private actors. Mégret offers functional and intrinsic rationales, suggesting that individuals have a right to benefit from certain public functions exercised by state authority, such as legislation and adjudication, what perhaps could be termed “the human right to the state.” In this essay, I suggest that it is indeed possible to derive such demands from the requirements of stable and sustainable governance that are embedded in the concept of sovereign responsibility, as well as from the rights associated with democracy and self-determina...
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The debate whether property is a limit on or the product of sovereignty envisages a tension between “the individual owner” and “the state.” But “the state” is not more than the aggregate of individuals who define theirs and others’... more
The debate whether property is a limit on or the product of sovereignty envisages a tension between “the individual owner” and “the state.” But “the state” is not more than the aggregate of individuals who define theirs and others’ property rights through the state’s political process. The underlying tension between property and sovereignty is thus the tension between the economic market and the political market. Owners and others compete simultaneously at both levels to define, protect or improve the value of property. There are two ways to compete in the political marketplace: by engaging in either “high visibility politics” or “low visibility politics.” Diffuse owners rely on high visibility politics promoted by agents such as political parties or trade unions and on elections, referenda and the like, whereas smaller groups of owners prefer the low politics of capturing lawmakers and state executives.When economic markets became global at the end of the Cold War, so did the polit...
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An army attacks a neighborhood where the enemy is hiding among civilians. To what extent is the army required to expose its combatants to life-threatening risks in order to spare enemy civilians? This Article seeks to interpret the... more
An army attacks a neighborhood where the enemy is hiding among civilians. To what extent is the army required to expose its combatants to life-threatening risks in order to spare enemy civilians? This Article seeks to interpret the pertinent standards and rules of international law from the perspective of the principle of human dignity. The human dignity principle informs the interpretation of the law on the conduct of hostilities and provides a built-in mechanism for improving armies' treatment of enemy civilians. It inspires additional remedial and institutional norms that could overcome armies' distrust of each other during the height of battle. The principle of human dignity recognizes a general duty to strive to reduce harm to enemy civilians as well as specific rules against using them as human shields, hostages, or objects for retaliation. This Article concludes that in general there is no requirement to risk combatants to reduce the risk to enemy civilians, although ...
Research Interests: Law, Political Science, Duty, Dignity, Social Science Research Network, and 3 moreHarm, Distrust, and battle
Individual rights are secured by at least two legal sources: constitutional law and international law. The co-existence of constitutional and international law norms is inevitably a source of conflict: When there is a conflict between a... more
Individual rights are secured by at least two legal sources: constitutional law and international law. The co-existence of constitutional and international law norms is inevitably a source of conflict: When there is a conflict between a constitutional provision and an international law provision, which (if any) provision should have the upper hand? Theorists thus far have argued for (and assumed the necessity of) a clear hierarchy between constitutional and international law. This Article argues that the conviction that one system of norms is superior to the other is false. Instead we embrace competition between constitutional and international norms, what we call the "discordant parity hypothesis." It is the persistent tension and conflict between the two systems of norms that is necessary for recognizing and ensuring individual freedom.To establish the discordant parity hypothesis, we explore the best possible arguments for both the internationalists’ and for constitutionalists’ positions. We suggest that the argument supporting the overriding power of international law norms is the recognition of the state's duty to protect rights, rather than merely a discretionary gesture on its part. The overriding power of constitutional norms stems from its promise to individuals of being the masters of their destiny. We believe that both claims are equally convincing. Instead of trying to establish hierarchy between the claims, we embrace their equal standing and the ensuing conflict between them. We believe that constant tensions and conflicts between international norms and state norms is ideally suited to ensure individual liberty.
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Lawmakers regularly delegate authority to agents. Such delegation is accompanied by mechanisms that attempt to ensure that the agents adhere to the will of the lawmakers. But these mechanisms are often ineffective or inefficient.... more
Lawmakers regularly delegate authority to agents. Such delegation is accompanied by mechanisms that attempt to ensure that the agents adhere to the will of the lawmakers. But these mechanisms are often ineffective or inefficient. Moreover, at times the very imposition of constraints distorts the agents’ incentives and impels them to adopt skewed policies. We suggest that it is possible to reduce such wasteful enforcement costs by delegating authority to certain types of agents who will pursue the lawmaker’s policies without constraints imposed by the lawmaker. In this Article we focus on agents who are impartial — but not indifferent! — and skillful enough to identify the proper course of action. The Article encompasses two main arguments. The normative argument is that when skillful and impartial agents can be identified, it makes sense to delegate to them decision-making powers with only limited constraints. Moreover, in such instances it may be more cost-effective to provide agen...
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Research Interests: Law, Political Science, Law and Economics, Normative, Law of War, and 3 moreScrutiny, Harm, and Discretion
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Research Interests: Law, Globalization, International Law, Political Science, Collective Action, and 13 moreLaw and Economics, Commercial Law, International trade law, Institution, Social Welfare, Social Science Research Network, Appropriation, Compromise, Transnational law, Transnational Law, Treaty Negotiation, Ratification, and michigan law
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Research Interests: Economics, International Law, International organizations, Accountability, Political Science, and 11 moreLegitimacy, Democracy, Peer Review, Applied Economics, Europeanisation, Deliberation, National Security, Constitutional Political Economy, Public Participation, International Organizations, and Delegate
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Not so long ago the overwhelming majority of courts in democratic countries shared a reluctance to refer to foreign and international law. Their policy was to avoid any application of foreign sources of law that would clash with the... more
Not so long ago the overwhelming majority of courts in democratic countries shared a reluctance to refer to foreign and international law. Their policy was to avoid any application of foreign sources of law that would clash with the position of their domestic governments. Many jurists find recourse to foreign and international law inappropriate. But even the supporters of reference to external sources of law hold this unexplored assumption that reliance on foreign and international law inevitably comes into tension with the value of national sovereignty. Hence, the scholarly debate is framed along the lines of the well-known broader debate on “the countermajoritarian difficulty.” This article questions this assumption of tension. It argues that for courts in most democratic countries—even if not for U.S. courts at present—referring to foreign and international law has become an effective instrument for empoweringthe domestic democratic processes by shielding them from external econo...
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We live in a shrinking world where interdependence between countries and communities is increasing. These changes also affect—as they should—the concept of sovereignty. In past decades the predominant conception of sovereignty was akin to... more
We live in a shrinking world where interdependence between countries and communities is increasing. These changes also affect—as they should—the concept of sovereignty. In past decades the predominant conception of sovereignty was akin to owning a large estate separated from other properties by rivers or deserts. By contrast, today’s reality is more analogous to owning a small apartment in one densely packed high-rise that is home to two hundred separate families. The sense of interdependency is heightened when we recognize the absence of any alternative to this shared home, of any exit from this global high-rise. The privilege of bygone days of opting out, of retreating into splendid isolation, of adopting mercantilist policies or erecting iron curtains is no longer realistically available.