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Terror Detentions and the Rule of LawUS and UK Perspectives$
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Robert H. Wagstaff

Print publication date: 2013

Print ISBN-13: 9780199301553

Published to Oxford Scholarship Online: April 2014

DOI: 10.1093/acprof:oso/9780199301553.001.0001

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An Applicable International Rule of Law

An Applicable International Rule of Law

(p.147) 6 An Applicable International Rule of Law
Terror Detentions and the Rule of Law

Robert H. Wagstaff

Oxford University Press

The late Tom Bingham spoke eloquently of the rule of law’s crucial role in the international arena, saying it is ‘one of the greatest unifying factors, perhaps the greatest, the nearest we are likely to approach to a universal secular religion’ – an ideal worth striving for. The International Rule of Law is essentially the domestic rule of law ‘writ large’. Foundations of an international rule of law are reflected in the Hague Conventions of 1899 and 1907, the Atlantic Charter, the founding of the United Nations, the adoption of the Universal Declaration of Human Rights, and subsequent adoption of the Geneva Conventions. This chapter traces the post World War II development of international human rights and humanitarian law. It also discusses the path of customary international law which has been part of the landscape for several hundred years. The ‘law of nations’ is specifically recognized in Art. I , sec. 8 of the US Constitution and recognized by the Supreme Court’s 1804 decision in The Charming Betsy, and then again 100 years later in The Paquette Habana. Reports by the International Committee of the Red Cross and the Eminent Jurists Panel illustrate how the Bush-based war on terror and the US Military Commission Acts of 2006 and 2009 are in violation of numerous basic tenets of customary international law and the US Supreme Court has begun to recognize that international law does indeed have a place in US jurisprudence.

Keywords:   Atlantic Charter, United Nations, Geneva Conventions, Hague Conventions, Charming Betsy, law of nations, Customary International Law, International Human Rights, International Humanitarian Law

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