International Law and Domestic Law

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The Honduran Crisis and the Turn to Constitutional Legitimism, Part I: The Place of Domestic Constitutional Orders in the International Legal Framework

Who is the current President of Honduras?  Far from the stuff of quiz shows, this question bears on the very foundations of international law.  The international reaction to the June 28, 2009 ouster of President Manuel Zelaya, though superficially similar to earlier repudiations of coups, is in important respects unprecedented.  Its implications have a profundity that few international actors – least of all, President Zelaya’s strongest international political allies – seem to have considered. A decade ago, I explored at length the question of Governmental Illegitimacy in International Law.  The title was initially intended as a provocation, since the legitimacy of governments had ordinarily not been considered a proper object of international law.  It had largely been taken as a given that a ruling apparatus exercising “effective control through internal processes” – whether or not formally “recognized” – would be acknowledged to have legal standing to assert rights, incur obligations, exercise powers, and confer immunities on behalf of the underlying sovereign entity that enjoyed membership in the international legal order.

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Comment on Benvenisti & Downs’, ‘National Courts, Domestic Democracy, and the Evolution of International Law’

Alison MacDonald is an English Barrister at Matrix Chambers and was a Fellow at All Souls College, Oxford from 1999 to 2006. She has acted as counsel before a range of international tribunals including the European Court of Human Rights, the Special Court for Sierra Leone, the International Tribunal for the Law of the Sea,…

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US Appeals Court holds that Former Foreign Officials Entitled to Immunity in Civil Suit alleging War Crimes

The Second Circuit of the US Court of Appeals has recently (April 16, 09) held  in Matar v. Dichter that the former head of the Israeli General Security Service is immune in a civil suit brought under the US Aliens Tort Claims Act (28 USC  § 1350) alleging war crimes and extrajudicial killing. The suit relates to Dichter's participation…

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US District Court Rules on Guantanamo Detention Standard

A US District Court has just released the first judicial opinion on the detention standard applicable to detainees in Guantanamo (formerly known as 'enemy combatants'), subsequent to the filing of the Obama administration's brief that we have previously extensively discussed. Judge Walton's opinion shows a valiant effort to grapple with the applicable international humanitarian law. Regrettably, however, I…

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Domestic Enforcement of Decisions of International Tribunals

I am at the American Society of International Law's Annual Meeting and attended a panel on the domestic enforcement of decisions of international tribunals.  The panelists, which included distinguished presenters Professors Lori Fisler Damrosch of Columbia University and Andreas Paulus of Gottingen, spoke about the Medellin case of the US Supreme court, about the Kadi decision of the…

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