Hamdan v. Rumsfeld. 126 S.Ct. 2749.

United States Supreme Court, June 29, 2006.

In Hamdan v. Rumsfeld, the U.S. Supreme Court found that the military commissions established by President George W. Bush were unauthorized by law and inconsistent with both the Uniform Code of Military Justice (UCMJ) and the 1949 Geneva Conventions. Rejecting jurisdictional challenges to its resolving the legality of the tribunals, the Court found the military commission proceedings against Hamdan to violate the “uniformity” requirement of the UCMJ, under which military commissions must be governed by the same standards as courtsmartial except where impracticable. The Court also found the tribunals to violate the Geneva Conventions as incorporated by Article 21 of the UCMJ, because the commissions did not qualify as “regularly constituted courts” as required under Common Article 3.

The economic mandate of the “misnamed” International Labour Organization (ILO) has long been “othered” internationally. The ILO's 1944 constitutional annex, the Declaration of Philadelphia, confirms the ILO's “responsibility … to examine and consider all international economic and financial policies and measures in the light of th[e] fundamental objective” of lasting peace on the basis of social justice. After 1945, through decolonization, and prior to the emergence of a Washington consensus-based neoliberal globalization, the ILO enabled some states to mediate the “social” in economic regulation—that is, to adopt free trade economic liberalism promoted transnationally with social redistribution addressed domestically, also referred to as embedded liberalism. States established and harmonized international labor standards through multilateral processes steeped in an organizational tripartism that made workers’ and employers’ representatives ILO institutional actors alongside governments. At least in the global North, the ILO fostered a high degree of normative convergence nationally, regionally, and on shop floors. For the first Director-General, Albert Thomas, the ILO “taught the world to speak something like the same language on social questions.” Its approach has been nuanced, pragmatic, and transnational, taking leadership on issues like social protection that should also have been—but were not—the focus of other international economic institutions.

Legal regulation of the arms trade has been slow to evolve despite the promotion after World War I of the idea that, for the sake of peace, arms exports should be limited and despite the condemnation on moral grounds of private arms traders who helped to rouse conflict. Article 26 of the United Nations Charter tasked the Security Council with initiating plans for the establishment of a system to regulate armaments in order to promote peace and security and to restrict the diversion of the world’s resources to military expenditure. The extent of this “diversion” of resources is reflected in the estimate that the total value of the global arms trade in 2013 was at least $85 billion. The United Nations’ efforts, which included the public Register of Conventional Arms and a program of action relating to the illicit trade in small arms, culminated in the adoption of the long-awaited Arms Trade Treaty (ATT) on April 2, 2013, which enters into force on December 24, 2014.

Dispute settlement is entrenched in the 1982 UN Convention on the Law of the Sea (UNCLOS) through the Part XV compulsory mechanisms. It is also reflected in UNCLOS's indication that delimitation of the exclusive economic zone or the continental shelf is to be by way of agreement between coastal states. While maritime boundary delimitation may be viewed as dominated by judicialization, that is not reflected in UNCLOS. The maritime boundary delimitation project unleashed by UNCLOS gave primacy to delimitation by agreement, with third party settlement under Part XV the secondary mechanism. The 2018 Australia/Timor-Leste maritime boundary settlement highlights how, even when Part XV third party mechanisms were used, the coastal states were able to reach agreement on a maritime boundary by negotiation, without recourse to judicialization.

In July 2017, the UN International Law Commission (ILC) provisionally adopted Draft Article 7 on exceptions to immunity ratione materiae of state officials from foreign criminal jurisdiction, by a recorded vote of twenty-one votes in favor, eight votes against, and one abstention. In the view of the majority of ILC members, immunity ratione materiae does not apply to the six international crimes listed in the draft article—genocide, crimes against humanity, war crimes, apartheid, torture, and enforced disappearance—either because of a limitation or because of an exception. The unusual practice of adopting a draft article by recorded vote demonstrated the deep controversy among the ILC members themselves. After all, exceptions to official immunity lie at the core of the project of “Immunity of State Officials from Foreign Criminal Jurisdiction” that was started a decade ago by the ILC. This divisive Draft Article 7 naturally garnered criticism and equally deep controversy among states in discussions on the ILC's work report at UN General Assembly Sixth Committee in late October 2017.

How to deal with China? This is the biggest question confronting U.S. trade policy—or even the United States’ entire foreign policy—today. Over the past few years, the debate on this important issue has benefited from the contributions of many trade law scholars, including those by Mark Wu, Jennifer Hillman, Petros Mavroidis, André Sapir, Rob Howse, Weihuan Zhou, and the present author. In “Governing the Interface of U.S.-China Trade Relations,” Gregory Shaffer offers refreshing insights. Building on the framework developed by the U.S.-China Trade Policy Working Group, of which he is a member, Shaffer further adjusts the group's “four-buckets” model and provides an updated framework. Calling his approach “Rebalancing Within a Multilateral Framework,” Shaffer argues that his framework avoids the pitfalls of both “Power-Based Bargaining” and “Rule-Based Neoliberalism” and is the most promising “middle path.” As a trade lawyer, I am naturally more inclined toward Shaffer's approach and its firmer grounding in trade law, in contrast to the heavily econ-centric approach in the Joint Statement by the Working Group, which does not reference law. Coming from the other side of the Pacific, however, I would approach the issue a bit differently by asking the questions that rarely gets asked: What are China's reactions to these proposals? Will China be willing to trail along, or, perhaps more likely, will it view them suspiciously as “traps,” as China's former World Trade Organization (WTO) Ambassador Zhang Xiangchen once put it?

On December 18, 2019, by a majority vote, the House of Representatives impeached President Trump for abusing power by soliciting Ukrainian interference in the 2020 presidential election and then obstructing the House's impeachment investigation. The allegations against Trump rested substantially on a phone conversation between Trump and Ukrainian president Volodymyr Zelensky on July 25, 2019. During this conversation, Trump asked Zelensky to investigate the prior conduct of Joe Biden—Trump's likely political opponent for the 2020 presidential election. While the House was conducting its impeachment investigation, the White House directed executive branch officials not to testify or to turn over documents. Less than two months after the impeachment, on February 5, 2020, the Senate voted to acquit Trump of the charges, with a majority of Senators voting in favor of acquittal.

The results of the plebiscite suggest that Colombia’s international obligations regarding the right to justice will be a key issue in the new postplebiscite phase of the peace negotiation. Perhaps, then, the best starting point for an analysis of these obligations is the rejected Peace Accord. If it complies with international obligations, then it seems likely that any new agreement will also be in compliance: opponents focused much of their arguments on the high level of impunity supposedly embedded in the original deal.

In any legal system there is an order of rank of types of law. This order in countries where courts are independent of other branches of government, where there is both a “separation of powers” and a “rule of law,” is established and maintained by the courts through their decisions. As “interpreters” of the constitution, written or customary, the courts are really the artisans of this standard of rank, for it is rarely stated explicitly in constitutional documents.