MJIL Online

MJIL Online brings you timely short-form articles that represent a wide range of views on contemporary issues in international law. The views and opinions expressed in these articles are those of the authors only.


 

Jacob Greenberg, Vol. 37 Associate Editor
When the United Kingdom’s Labour Party elected Jeremy Corbyn, one of the furthest left-wing Members of Parliament, as its leader, reverberations were felt around the world. At home, pundits questioned whether a man who appeared regularly on Iranian and Russian propaganda channels should be briefed on top secret national security matters, as his predecessors had.[1] Scottish commenters wondered whether a reenergized Labour base in Scotland would assist or cripple the movement for Scottish independence.[2] Perhaps the most surprising reaction, if only for its unbridled enthusiasm, came from Argentine President Christina Kirchner. “Hope has triumphed,” she stated, his victory was “a triumph for all those who work for peace and conflict resolution.”[3]

Kirchner’s overwhelming support stems from one of Corbyn’s many unique policy positions: his call for joint UK and Argentine administration of the Falkland Islands (or Malvinas, as they are called in Argentina). England first established a settlement on the Falkland Islands in 1690, and claimed them in 1765.[4] It withdrew its settlement in 1774, but never revoked its claim.[5] Argentina inherited its claim from Spain, and it established its first settlement in 1820.[6] In 1833, Britain, acting on its claim, forcibly evicted the Argentine military.[7]

Yekaterina Reyzis, Vol. 37 Associate Editor
Introduction

The United Nations’ (“UN”) intervention in the Sri Lankan civil war spawned an international inquiry into the efficacy and legitimacy of UN forces and raised broader concerns about UN involvement in internal state conflicts generally. The aftermath of the conflict illustrates that during more than a quarter century of violence between the Sri Lankan government and secessionist militants, Liberation Tigers of Tamil Eelam (“Tamil Tigers”), the UN could have been more proactive, efficient, and responsible in its mission to monitor and report the violence on the ground,[1] which slayed at least 100,000 people.[2] Namely, in the lead up to the end of the war, the UN failed to address multiple red flags presented by the Sri Lankan government,[3] which consequently wiped out an estimated 40,000 civilians in the last five months of the conflict alone.[4]  Last week, however, the UN’s call for an international war crimes court[5] appeared to be its first constructive step in ensuring that the post-war Sri Lankan government takes the appropriate steps to achieve accountability and prolonged reconciliation within its borders.

UN Response

In June 2010, in the wake of the civil war, a panel of experts organized by the UN Secretary General

Joon Yoo, Vol. 37 Associate Editor
This past summer, a hearing was held at the International Centre for Settlement of Investment Disputes (ICSID) in Washington, D.C. concerning an international arbitration between the South Korean government (hereinafter “the Government”) and Lone Star Funds (hereinafter “LSF”), a U.S.-based private equity fund that filed this arbitration claim at the ICSID to seek reimbursement of $4.68 billion from the South Korean government.[i] The stakes are enormous, and not only because of the amount of money in controversy. ICSID’s decision cannot be appealed as in ordinary lawsuits and if South Korea loses this dispute many more similar suits by foreign business entities could follow.[ii] The dispute involves two major issues: (1) whether or not the Government unduly delayed the sale of LSF’s controlling interest in Korea Exchange Bank (KEB), especially by refusing to approve the KEB’s sale to HSBC in 2007; and (2) whether or not the Government’s taxation of the profit from KEB’s sale in 2012 was in violation of the bilateral investment treaty between South Korea and Belgium-Luxembourg.[iii] Most importantly, the outcome as to the second issue will turn on how to interpret the bilateral investment treaty that does not expressly mention the tax

Chris Sungwon Lee, Vol. 37 Associate Editor
[Ed. note: Compare Eddie Mears' article of March 2015.]

Bitcoin’s value has surged over the years as people are turning to Bitcoin as an alternative form of currency. Despite their increasing use, Bitcoin has reigned largely free of regulations. Regulators have been slow to respond partly because of their unpreparedness in tackling Bitcoin’s distinct features.  But as Bitcoin’s risks grow with its importance, regulators are at a critical juncture of having to scurry to create a regulatory framework.

Federal Judge Decrees Bitcoin a Commodity

Because of Bitcoin’s unique features, one can view Bitcoin as a commodity, asset class, or security.[1] Effective regulation is possible with any of these classifications. For instance, the Securities and Exchange Commission (SEC) may favor considering Bitcoin as securities since that would grant SEC power to charge bitcoin uses in illegal purposes such as fraud, money laundering and commerce in narcotics.[2] IRS rules have already established Bitcoin as property, not currency.[3]

On September 17th 2015, the Commodity Future Trading Commission followed suit by declaring Bitcoin as a commodity covered by Commodity Exchange Act (CEA). Although this result was expected, this is the first time the CFTC has officially declared its position. The CFTC stated

William Quinn, Vol. 37 Associate Editor
The Geneva Conventions of 1949 are universally recognized as the core body of international law regulating the conduct of armed conflict.[1] Nevertheless, it seems trite to remark that they have not been universally obeyed.[2] That lack of obedience has not gone unnoticed, as political leaders, lawyers, activists, and journalists throughout the world have worked tirelessly to expose war criminals and bring them to justice.[3] Though the Geneva Conventions failed to usher in an era of peace – or even an era of conflict lacking in wanton barbarity – they have provided an effective standard by which to judge the actions of combatants.

Commitment to the use of that standard is now eroding. Since September 11, 2001, some provisions of the Geneva Conventions have been viewed as outdated and inapplicable to the modern national security environment.[4] Common Article 3 of the Geneva Conventions provides assurances for the humane treatment of captured prisoners of war.[5] Because members of terrorist and insurgent organizations ignore the Geneva Conventions, and because they do not fit clearly into any of the categories afforded protection by the Geneva Conventions, countries such as the United States, the United Kingdom, and Israel have balked at

Jason S. Levin, Vol. 37 Associate Editor
August 2015 marked the release of India’s Twentieth Law Commission report, wherein Indian officials proposed sweeping changes to the country’s policy toward bribery.[1] India, the second most populous nation and the largest democracy in the world,[2] is no stranger to the drawbacks of a society rife with corruption.[3] As S. K. Ghosh, Former Inspector General of Odisha Police, noted in his seminal work in 1971, “[c]orruption is tracking blood on [India’s] sacred heritage, impeding the progress of [India’s] society, and jeopardizing [India’s] hope for the future.”[4]

The proposition of India’s anti-bribery bill is not their first iteration, as it is the culmination of a previous bill proposed in 2011 and vast research on anti-bribery laws throughout myriad nations.[5] Currently, India, unlike the United States,[6] lacks a domestic law that criminalizes the aforementioned acts.[7] However, as a signatory to the United Nations Convention Against Corruption, 2003 (“UNCAC”), India is required to “enact a law that penali[z]es bribery of foreign officials as well as officials of public international organizations.”[8] Consonant with the three-pronged mission of the UNCAC,[9] it appears that India is now, perhaps more than ever, with Narendra Modi at the helm, ready to commit to

David Angel, Vol. 36 Associate Editor
Introduction

This year has brought fresh examples of how the balance of the world’s economic power is shifting, promising to realign the relationships between major powers and their allies. A recent example of this is Australia’s decision to join the China-led Asian Infrastructure Investment Bank (AIIB) over the objection of US officials.[1] Earlier this year, close American allies including the United Kingdom,[2] France,[3] Germany,[4] Italy,[5] and South Korea[6] also decided to become AIIB founding members. One motivation for the creation of the AIIB is to plug a large infrastructure funding gap in Asia, providing much-needed capital for projects like roads and bridges.[7] Other development banks, including the World Bank and the Asia Development Bank, simply do not have sufficient funds to adequately finance infrastructure projects in the region.[8]

But a desire to provide much-needed financing to the region only partially explains China’s motivation. The creation of the AIIB also reflects Chinese dissatisfaction with the post-war system of international economic governance. Following World War II, the global community recognized the need for international institutions that could more effectively deal with the kinds of economic problems that helped precipitate the war.[9] One of these institutions, the International Monetary Fund

Zhouyuan Diana Duan
Vol. 37 Executive Editor
Vol. 36 Associate Editor
Introduction

The question of whether a foreign arbitral institution can administer an arbitration seated in Mainland China has been discussed for many decades and still remains unresolved till this day. Until 2009, two leading cases established two different perspectives on this issue. In 2006, the Supreme People’s Court in Züblin International GmbH v. Wuxi Woke General Engineering Rubber Co., Ltd. (“Züblin”) ruled that the award rendered by an ICC tribunal seated in Shanghai was invalid.[1] In contrast, in Duferco S.A. v. Ningbo Arts & Crafts Import and Export Co., Ltd. (2009) (“Duferco”), the Ningbo Intermediate People’s Court of Zhejiang Province upheld an award rendered by an ICC tribunal seated in Beijing.[2]

At first, it may seem that the Züblin case and the Duferco case contradict each other. A closer look at the holdings, however, reveal that neither courts truly addressed the issue of whether a foreign arbitral institution can administer an arbitration seated in the Mainland. The Züblin court did not recognize the ICC award because the arbitration clause “failed to expressly designate an arbitral institution," as required under Chinese law.[3] Likewise, the Duferco court recognized the award because the party had “failed to object


THE MICHIGAN GUIDELINES ON RISK
FOR REASONS OF POLITICAL OPINION
The Convention relating to the Status of Refugees (“Convention”) recognizes as refugees those who, owing to a well-founded fear of being persecuted on the basis of inter alia “political opinion,” are unable or unwilling to avail themselves of the protection of their home country.

State practice acknowledges that protection based on “political opinion” should not be limited to those individuals at risk by reason of their views about partisan politics. Beyond this, the absence of an authoritative definition of “political opinion” in either the Convention or international law more generally has allowed interpretive inconsistencies to emerge, both within and among jurisdictions. Further complicating the search for a consistent approach is a lack of clarity about how best to ensure that the social and political context of the country of origin is meaningfully taken into account in assessing the existence of a “political opinion.”

With a view to promoting a shared understanding of the proper interpretation of “political opinion” within the context of Article 1(A)(2) of the Convention, we have engaged in sustained collaborative study and reflection on relevant norms and state practice. Our research was debated and refined at the Seventh Colloquium on Challenges

THE MICHIGAN GUIDELINES ON RISK
FOR REASONS OF POLITICAL OPINIONThe Michigan Guidelines on Risk for Reasons of Political Opinion represent the end product of sustained research that culminated in the Seventh Colloquium on Challenges in International Refugee Law.The Colloquium was convened in March 2015 by Michigan Law's Program in Refugee and Asylum Law, and chaired by Professor James C. Hathaway. The Michigan Guidelines reflect the consensus of Colloquium participants on when a person faces a risk of being persecuted "for reasons of political opinion" in a manner that ensures both fidelity to international law and the continuing vitality of the 1951 Refugee Convention.The Michigan Guidelines will be first published here on MJIL's website on July 24th, 2015. Follow MJIL on Facebook and Twitter, MLaw on Facebook and Twitter, and Professor Hathaway on Twitter for more information.

Articles
Nancy Amoury Combs
"From Presecutorial To Reparatory: A Valuable Post-Conflict Change Of Focus"

Richard Ashby Wilson
"Inciting Genocide With Words"

Notes
Ezekiel Rediker
"The Incitement Of Terrorism On The Internet: Legal Standards, Enforcement, And The Role Of The European Union"
Comments
Brian Libgober
"Can The EU Be A Constitutional System Without Universal Access To Judicial Review?"

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Articles
J. Clifton Fleming, Jr., Robert J. Peroni & Stephen E. Shay
"Formulary Apportionment in the US International Tax System: Putting Lipstick on a Pig?"

Matthew C. Turk
"Reframing International Financial Regulation After the Global Financial Crisis: Rational States and Interdependence, Not Regulatory Networks and Soft Law"


Vassilis P. Tzevelekos
"Reconstructing the Effective Control Criterion in Extraterritorial Human Rights Breaches: Direct Attribution of Wrongfulness, Due Diligence, and Concurrent Responsibility"
Notes
Pauline Hilmy
"The International Human Rights Regime and Supranational Regional Organizations: The Challenge of the EU"

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Amy K. Bergstraesser, Vol. 36 Associate Editor
Introduction

The experience of large economic shifts often sparks the need for more than some governments can or are willing to deal with. Social welfare systems deteriorate and the gap between the rich and the poor grows, causing concern and strife. Recently, businesses have been called on to pick up the pieces. Eastern Michigan, on the brink of recovery from a huge economic downturn, has looked to smaller-scale grassroots ways of revitalizing the economy. By encouraging social entrepreneurs and their businesses to not only launch in “Pure Michigan,” but also to contribute to local social issues, Michiganders hope to slowly rejuvenate the struggling eastern half of the state. On the other side of the globe, China has struggled with many of the same social problems, including high levels of poverty, after the country began shifting from a state-run economic system to a private system aimed at economic growth.[i] To address these problems, China has taken social entrepreneurship to a new level, mandating corporate social responsibility. The following is a comparative piece about how Michigan and China, both dealing with their own unique economic crises, have encouraged and even mandated social responsibility.

Social Entrepreneurship in Eastern Michigan

Eastern

Divya Taneja, Vol. 37 Business and Development Editor,
Vol. 36 Associate Editor
Last month, Human Rights Watch released a report on labor violations in Cambodia’s garment industry.[i] The 140-page report details discriminatory and exploitative labor conditions that occur in the factories of many brands that are well known across the globe, including Gap, Marks & Spencer, and Adidas.[ii] The controversy surrounding these labor rights violations have drawn attention to ill-treatment that is specific to women, including pregnancy discrimination, in part because roughly 90% of Cambodia’s seamstresses are women.[iii] Cambodia is responsible, as are all countries, for complying with international human rights law, including labor rights. Cambodia is a member state to the International Labour Organization’s (ILO) treaty,[iv] meaning it has assented to comply with the ILO’s standards. Cambodia is party to several international legal conventions governing the rights of women in the workplace and other worker rights: the Convention on Elimination of All Forms of Discrimination against Women (CEDAW) and its Optional Protocol,[v] the Convention on the Rights of the Child (CRC) and its Optional Protocol,[vi] the International Covenant on Economic, Social and Cultural Rights (ICESCR),[vii] and the International Covenant on Civil and Political Rights (ICCPR).[viii] The country has also ratified 13

Luca Winer, Vol. 37 Editor-in-Chief, Vol. 36 Associate Editor
Violence against women and children is endemic in many conflict zones. Sexual violence is particularly likely to be used a weapon of intimidation and subjugation.[i] The international community has acknowledged this unfortunate truth, and discussed, written and signed many multilateral treaties that attempt to address this type of violation. Since the 1940s, customary international law has recognized that even in wartime, civilians have legal rights and protections.[ii] The Fourth Geneva Convention of 1949 stated that civilians must be cared for in detention and must not be subject to torture; "violence to their life or person;" be taken hostage; subject to "outrages upon personal dignity;" or subject to rape.[iii]

Violence against women was specifically addressed as an international human rights issue in The Convention on the Elimination of All Forms of Discrimination against Women ("CEDAW"). [iv] This convention, adopted in 1979, became the foundational international human rights treaty concerned with eliminating violence against women and championing women’s rights.[v] Its overarching goal is “to eliminate all forms of discrimination against women with a view to achieving women's de jure and de facto equality with men in the enjoyment of their human rights and fundamental freedoms.”[vi] CEDAW binds signatories to

Jeffrey R. Boles
"The Two Faces of Bribery: International Corruption Pathways Meet Conflicting Legislative Regimes"

Sam F. Halabi
"Multipolarity, Intellectual Property, and the Internationalization of Public Health Law"

Dr. Daphné Richemond-Barak
"Can Self-Regulation Work? Lessons From the Private Security and Military Industry"

Seth Mohney (Student Note)
"The Great Power Origins of Human Rights"

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Anonymous, Vol. 36 Associate Editor
Syria’s President Bashar Assad has engaged in a civil war with Syrian citizens since March 2011.[i] As the revolution-turned-bloodbath enters its fifth year, the estimated death toll has reached 220,000 and continues to rise.[ii] The conflict has also displaced a significant percentage of the country’s pre-war population. The United Nations High Commissioner for Refugees estimates that there are 3.8 million Syrian refugees who are now registered in Jordan, Lebanon and Turkey. [iii] Yet, Assad regime forces have only been more aggressive in their indiscriminate shelling of residential areas and their use of internationally prohibited barrel bombs against both civilians and rebel fighters.[iv]



The relevant international forums have failed to hold the perpetrators accountable for their crimes. At the U.N. Security Council, Russia and China have continuously blocked any resolution that would allow investigation of war crimes or hold the Assad regime accountable for any possible war crimes. [v] Specifically, the regime’s allies blocked a referral of Syrian President Assad to the International Criminal Court (ICC) which would seek to hold him accountable for war crimes. [vi]

What the victims need is a neutral forum in which to adjudicate their claims, especially since no claim is available to them

Anjanette H. Raymond & Scott J. Shackelford
Technology, Ethics, and Access to Justice: Should an Alogrithm be Deciding Your Case?

Timothy Webster
Paper Compliance: How China Implements WTO Decisions

Meredith Kolsky Lewis & Andrew D. Mitchell
Food Miles: Environmental Protection or Veiled Protectionism?

Zackary L. Stillings (Student Note)
Human Rights and the New Reality of Climate Change: Adaptation's Limitations in Achieving Climate Justice

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Derek Turnbull, Vol. 36 Associate Editor
As President Xi Jinping’s burgeoning anti-corruption campaign takes root in China, forcing government officials at the top of diverse ministries from the energy sector to the military to sit up and take notice, China’s anticorruption officials have set their sights on a new area: the United States.  Increasingly, China’s state media has critically covered the large number of government officials who have come under investigation in the People’s Republic of China (PRC) and then fled abroad, many to the United States, allegedly in possession of billions of dollars in stolen cash and assets.[1]  In February, Chinese and American government officials confirmed that they had recently met to discuss this issue, and announced that in August they will sit down together once more to talk about extradition.[2]  While the United States should naturally be at the forefront of any effort to bring corrupt criminals to justice, reasons still exist for caution as American officials move forward in negotiations with their Chinese counterparts.  Rather than capitulating to the PRC’s demands for an extradition treaty, the US should settle on a more flexible alternative, such as compliance with already-existing international agreements like the United Nations Convention Against Corruption.

The

Paul Behrens
The Law of Diplomatic Asylum—a Contextual Approach

John D. Ciorciari & Anne Heindel
Experiments in International Criminal Justice: Lessons from the Khmer Rouge Tribunal

Eric Talbot Jensen
The Future of the Law of Armed Conflict: Ostriches, Butterflies, and Nanobots

Brenton Kinker (Student Note)
An Evaluation of the Prospects for Successful Implementation of the Convention on the Rights of Persons with Disabilities in the Islamic World

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Elizabeth A. Beitler
Vol. 37 Articles Editor
Vol. 36 Associate Editor
The law of cultural property and its repatriation is becoming a more and more salient topic in the realm of international law for several reasons.  First, cultural property encompasses a vast array of objects, including, but not limited to, art, archaeological artifacts, antiquities, and rare manuscripts.[1]  Thus, the law of this field has a broad scope that transcends international boundaries.  Second, people are becoming increasingly aware of the value of objects subject to this area of law.  As a result, many more claims for repatriation have been made in recent years.  Furthermore, these claims have a significant impact on relations between interested parties, which are often countries.

The principle vehicle of such repatriation claims is the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, adopted by the General Conference of the United Nations Educational, Scientific and Cultural Organization on November 14, 1970.[2]  However, a great deal of debate exists surrounding the success, or lack thereof, of that Convention.[3]  Because the 1970 UNESCO Convention is non-self-executing, implementation has become a crucial issue in this debate.[4]  By comparing the implementation of the Convention in

Nicholas Charles Ognibene, Vol. 36 Associate Editor
In its brief post-independence history, Sierra Leone has experienced economic stagnation, brutal civil war, and dictatorship. Lately, however, it has been characterized by rapid (if uneven) economic growth and democracy. This growth has recently been checked by the Ebola crisis, which has created substantial suffering and uncertainty.

Complicating this uncertainty has been the recent constitutional crisis surrounding the office of the vice president. Vice President Samuel Sam-Sumana is from Kono District in the Eastern Province of Sierra Leone, known for its diamond production.  He was educated in the United States before working in the mining sector in his home city of Koidu,[i] and was selected as the running mate of now-President Ernest Bai Koroma on the All People’s Congress (APC) ticket for Sierra Leone’s 2007 presidential election. The APC was victorious and regained control of the executive branch for the APC.  Sam-Sumana’s tenure as vice president has not been not without controversy. In 2011, Al Jazeera published a report documenting undercover video footage of Sam-Sumana and two associates in which they appeared to assure a supposed prospective investor that timber-exporting licenses could be quickly and legally processed with the provision of bribes, despite a ban

Marjorie Mygrants, Vol. 36 Associate Editor
The Vienna Convention for the Protection of the Ozone Layer and the Montreal Protocol on Substances that Deplete the Ozone Layer are perhaps the most successful international treaties the world has seen.  In fact, both of the agreements are the most widely ratified treaties in United Nations history.[1]  This fact alone has helped lead to much of the treaties’ success, especially since worldwide recognition of a problem and willingness to take specific action to address the problem is a process that is necessary for a significant impact to occur in resolving the issue.  Of course, this is the goal of any treaty.  But, the reality is that most treaties are lacking in some criteria – enforcement, breadth of state ratification, and/or compliance with terms of the treaty.  This article will address the aspects that have made the treaty so successful.

The Vienna Convention provided the general framework for the tools to protect the ozone layer that surrounds the globe.  Generally, “The objectives of the Convention were for Parties to promote cooperation by means of systematic observations, research and information exchange on the effects of human activities on the ozone layer and to adopt legislative or administrative

The Michigan Journal of International Law would like to announce the Volume 37 Editorial Board:

Volume 37 Editorial Board
Editor in Chief
Luca Winer
Managing Editor
Neha Khandhadia
Business and Development Editor
Divya Taneja
Managing Article Editor
Jacob Styburski
Managing Executive Editor
Katherine Lewis
Managing Note Editor
Liz Grden
Managing Online Content Editor
Stephen Packer
Production Editor
Evan Nichols
Article Editors
Elizabeth Beitler
Peter Bratton
Rama Chehouri
Zhandos Kuderin
Molly Quinn
Sarah Sessler
Executive Editors
Liz Bundy
Dayna Chikamoto
Diana Duan
Kelsey VanOverloop
Margo Strakosch
Note Editors
Hana Damore
Lidiya Petrova
Jesse Stricklan
Online Content Editors
Melanie Capuano
Sarah Jaward
Congratulations to the new board!

Javier  J. Rivera-Alvarado, Vol. 36 Associate Editor
The existence of the right to self-determination in international law is well established, but its precise meaning is still up for debate.[1] It has been defined as the right of all peoples “to determine their future, whether in the form of independence, integration in the administering state or some third state, or free association.[2] Although there is some debate on whether to classify self-determination as a right, a norm, or a principle, it may be understood as a qualified “right,” limited by competing considerations and the complexity in its application.[3] Moreover, context is of special importance to determining its contours.[4]

The peoples of Puerto Rico have invoked the right to self-determination and the United States has recognized this right.[5] However, Puerto Rico’s commonwealth status under the Territorial Clause of the Constitution remains unchanged after four plebiscites.[6] A new bill in Congress proposes a federally sanctioned status plebiscite but it should be modified to include different alternatives to increase the legitimacy of the results and help Puerto Rico put an end to its current status.

Plebiscites Held in the Exercise of Self-determination

Puerto Rico has held four plebiscites since it gained some autonomy in 1952.[7] In 1967, the

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