International Law and Domestic Law

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Testing the Limits of Diplomatic Protection: Khadr v The Prime Minister of Canada

Elizabeth Prochaska is a Barrister at Matrix Chambers, London. She has recently completed a period as Judicial Assistant to Baroness Hale and Lord Brown in the House of Lords. Omar Khadr, a Canadian citizen captured by US forces in Afghanistan at the age of 15 and imprisoned in Guantanamo Bay for 7 years, recently succeeded in convincing the Canadian Court of Appeal to order the Canadian government to request his immediate repatriation by the US  (Khadr v. Prime Minister of Canada 2009 FCA 246). This is no small achievement. Until the Court of Appeal’s judgment, no court – international or municipal – had recognised an obligation on a government to exercise diplomatic protection to safeguard nationals from ill-treatment at the hands of a foreign state.  The doctrine of diplomatic protection under which the state asserts its right to make claims on behalf of nationals injured abroad is a promising remedy for the human rights abuse of aliens. Governments can engage in all manner of conduct…

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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…

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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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