MJIL Online

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


 

Melan Patel, Associate Editor, Michigan Journal of International Law
The Security Council reached an agreement on what to do with Syria’s chemical weapons, avoiding yet another black mark on the institution.[i] It also bought some time for reform. Alas, we know from history that reform most likely will not occur, and the Security Council will continue to destabilize and discredit the UN. How? Its simple: continued reliance on the veto, whether hidden or explicit, by the five permanent members. This power has, and continues to be the bane of the UN.



Article 27 of the UN Charter allows permanent members of the Security Council to quash a resolution with a negative vote.[ii] This veto power has always been an umbrella over the Security Council. Throughout the Cold War, the veto dominated policy as the U.S. and Soviet Union battled amongst each other regarding peacekeeping operations.[iii] At the conclusion of the war, veto usage drastically fell; however, this has not spelled the end of the veto. A “pocket veto” has emerged.[iv] Since the council conducts its business in private sessions, members have freedom to pressure and bully less powerful members with the threat of the veto. Thus, the veto, while declining in

Michigan Guidelines on the Exclusion of International Criminals // English | French

Yossi Dahan, Hanna Lerner, & Faina Milman-Sivan
Shared Responsibility and the International Labour Organization

Keith A. Petty
Humanity and National Security: The Law of Mass Atrocity Response Operations

Jesse Medlong (Student Note)
All Other Breaches: State Practice and the Geneva Conventions' Nebulous Class of Less Discussed Prohibitions

Anonymous (Student Note)
A Dual Track Approach to Challenge Chinese Censorship in the WTO: The (Future) Case of Google and Facebook

Download Volume 34:4 at the Repository

Category: Volume 34
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 European Integration Through Law: Judicial Review of the Eurozone Crisis in European National, Regional and Supranational Courts

Introduction
The symposium explores the legal response to the European financial crisis, and the judicial review of those measures. Our authors come from different countries and backgrounds but have come together to discuss modern issues in European law. The Symposium considers themes raised in judicial review of the anti-crisis measures at the national, regional and supranational level. We have provided a more detailed foreword below, as well as a link to a profile of the project's convenors, posted on the University of Michigan Law School's homepage. We recommend reading the foreword, perusing the articles, and adding any comments below. We hope you enjoy this new format.

Symposium Foreword
Michigan Law Article

Articles

Advocate General Juliane Kokott, Speech, Perspectives on the Role of the Advocate General in the Eurozone Rescue Decision: Advocate General Kokott on Pringle v. Ireland [Delivered March 6, 2013] // English | German

Elaine Fahey & Samo Bardutzky, Judicial Review of Eurozone Law: The Adjudication of Postnational Norms in the EU Courts, Plural - A Case Study of the European Stability Mechanism // PDF

Giuseppe Martinico, The Impact of the Treaty on Stability, Coordination and Governance on the National Constitutional Structure: The Regional

Scott P. Sheeran

Under International Human Rights Law: Theory, Legal Doctrine, and Politics

Mark A. Drumbl

"She Makes Me Ashamed to be a Woman": The Genocide Conviction of Pauline Nyiramasuhko, 2011

Laura Pedraza-Fariña

Conceptions of Civil Society in International Lawmaking and Implementation: A Theoretical Framework

Download Volume 34:3 at the Repository

Harlan Grant Cohen
International Law's Erie Moment

Karen N. Scott
International Law in the Anthropocene: Responding to the Geoengineering Challenge

André Nollkaemper & Dov Jacobs
Shared Responsibility in International Law: A Conceptual Framework

Alexandra Link (Student Note)
Trying Terrorism: Joint Criminal Enterprise, Material Support, and the Paradox of International Criminal Law

Download Volume 34:2 at the Repository





Cite as: James C. Hathaway, The Michigan Guidelines on the Exclusion of International Criminals, 35 Mich. J. Int'l L. 3 (2013).





THE MICHIGAN GUIDELINES ON
THE EXCLUSION OF INTERNATIONAL CRIMINALS

English / French / Spanish
Article 1(F)(a) of the Convention relating to the Status of Refugees (“Convention”) requires the exclusion from refugee status of “... any person with respect to whom there are serious reasons for considering that... he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes.”

Current state practice relating to Article 1(F)(a) exclusion fails to draw consistently on international criminal law, as is mandated by the Convention’s text. The process of drawing on international criminal law is in any event complex given both the continuing evolution of international criminal law and normative divergence among the interpretations adopted by courts and national authorities. Most important, there has been a failure to recognize that international criminal law must be drawn upon in a way that takes full account of key differences between the purpose and structure of international criminal law and those of international refugee law. In the result, Article 1(F)(a) is prone to misapplication, leading

Omar M. Dajani
Contractualism in the Law of Treaties

Anna T. Katselas
Do Investment Treaties Prescribe a Deferential Standard of Review? A Comparative analysis of the U.S. Administrative Procedure Act's Arbitrary and Capricious Standard of Review and the Fair and Equitable Treatment and Arbitrary or Discriminatory Measures Treaty Standards

Wentong Zheng
Reforming Trade Remedies

Stephen Rooke (Student Note)
SATMED: Legal Aspects of the Physical Layer of Satellite Telemedicine

Download Volume 34:1 at the Repository

George K. Foster
Foreign Investment and Indigenous Peoples: Options for Promoting Equilibrium Between Economic Development and Indigenous Rights

Barbara Miltner
Revisiting Extraterritoriality After Al-Skeini: The ECHR and Its Lessons

Ziv Bohrer
Is the Prosecution of War Crimes Just and Effective? Rethinking the Lessons from Sociology and Psychology

Matthew G. Snyder (Student Note)
GSP and Development: Increasing the Effectiveness of Nonreciprocal Preferences

Download Volume 33:4 at the Repository

Molly Land
Rebalancing TRIPS

Janelle M. Diller
Private Standardization in Public International Lawmaking

Tony Cole
The Boundaries of Most Favored Nation Treatment in International Investment Law

Usman Ahmed & Raghav Thapar (Student Note)
Security Council Resolution 1887 and the Quest for Nuclear Disarmament

Download Volume 33:3 at the Repository

Jonathan H. Marks
Toward a Unified Theory of Professional Ethics and Human Rights

Margaret M. deGuzman
Choosing to Prosecute: Expressive Selection at the International Criminal Court

Nancy Amoury Combs
Legitimizing International Criminal Justice: The Importance of Process Control

Stijn van Osch (Student Note)
Save Our Sharks: Using International Fisheries Law Within Regional Fisheries Management Organizations to Improve Shark Conservation

Download Volume 33:2 at the Repository

Eric Stein in Memoriam
Contributions from James C. Hathaway, John H. Jackson, Theodore J. St. Antoine, Bruno Simma, Carl. A. Valenstein, Joseph Vining, William Adams, Susanne Baer, Lee C. Bollinger, and Jacques Bourgeouis

Bridgette A. Carr
Special Symposium Feature: Successes and Failures in International Human Trafficking Law: Introduction

Ambassador Luis CdeBaca
Special Symposium Feature: Successes and Failures in International Human Trafficking Law: Keynote Address

Jonathan Todres
Special Symposium Feature: Successes and Failures in International Human Trafficking Law: Widening Our Lens: Incorporating Essential Perspectives in the Fight against Human Trafficking: Essay

Saadiya Chaudary
Special Symposium Feature: Successes and Failures in International Human Trafficking Law: Trafficking in Europe: An analysis of the Effectiveness of European Law: Essay

Mohamed Y. Mattar
Special Symposium Feature: Human Rights Legislation in the Arab World: the case of Human Trafficking: Essay

Max Waltman
Special Symposium Feature: Prohibiting Sex Purchasing and Ending Trafficking: The Swedish Prostitution Law: Essay

Jennifer Shkabatur
Special Symposium Feature: Global Panopticon - The Changing Role of International Organizations in the Information Age

Download Volume 33:1 at the Repository

Patricia L. Judd
Toward a TRIPS Truce

Peter G. Danchin
Islam in the Secular Nomos of the European Court of Human Rights

John Quigley
Palestine is a State: A Horse with Black and White Stripes is a Zebra

Jonah Eaton (Student Note)
Emerging Norm - Determining the Meaning and Legal Status of the Responsibility to Protect

Download Volume 32:4 at the Repository

Charles Chernor Jalloh
Special Court for Sierra Leone: Achieving Justice

Daniel R. Cahoy
Breaking Patents

Eran Sthoeger
International Child Abduction and Children's Rights: Two Means to the Same End

Eric Stein
War, Politics, Law - And Love: Italy 1943-1946 (Special Feature)

Alan J. Alexander (Student Note)
Shifting Title and Risk: Islamic Project Finance with Western Partners

Download Volume 32:3 at the Repository

James A. Green
Questioning the Peremptory Status of the Prohibition on the Use of Force

Cyra Akila Choudhury
Exporting Subjects: Globalizing Family Law Progress through International Human Rights

Efraim Chalamish (Book Review)
Review of Do Treaties Matter? On Effectiveness and International Economic Law by Lisa Sachs & Karl Sauvant, eds.

Pier DeRoo (Student Note)
Public Non-Commercial Use Compulsory Licensing for Pharmaceutical Drugs in Government Health Care Programs

Download Volume 32:2 at the Repository

Jaya Ramji-Nogales
Designing Bespoke Transitional Justice: A Pluralist Process Approach

Daniel Benoliel & Ronen Perry
Israel, Palestine, and the ICC

Paul D. Carrington
Enforcing International Corrupt Practices Law: Essay

Katherine A. Wagner
Identifying and Enforcing Back-End Electoral Rights in International Human Rights Law (Student Note)

Download Volume 32:1 at the Repository





Cite as: James C. Hathaway, The Michigan Guidelines on the Right to Work, 31 Mich. J. Int'l L. 293 (2010).





THE MICHIGAN GUIDELINES ON
THE RIGHT TO WORK
English

Introduction
The right to work is fundamental to human dignity. It is central to survival and development of the human personality. According to the International Labour Organization (ILO), decent work “sums up the aspirations of people in their working lives—for opportunity and income; rights, voice and recognition . . . .”[1] Work is interrelated, interdependent with, and indivisible from the rights to life, equality, the highest attainable standard of physical and mental health, an adequate standard of living, the right to social security and/or social assistance, freedom of movement, freedom of association, and the rights to privacy and family life, among others.

Numerous international and regional human rights instruments, as well as many national constitutions, protect the right to work. The right to work is contained in Article 23 of the Universal Declaration of Human Rights. Articles 6, 7, and 8 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) recognize the right to work, along with rights at work. In addition, Article 8(3)(a) of the International Covenant on Civil and Political Civil Rights (ICCPR) protects





Cite as: James C. Hathaway, The Michigan Guidelines on Protection Elsewhere, Adopted January 3, 2007, 28 Mich. J. Int'l L. 207 (2007).





THE MICHIGAN GUIDELINES ON
PROTECTION ELSEWHERE

English / French / Russian / Arabic

Introduction
Refugees increasingly encounter laws and policies which provide that their protection needs will be considered or addressed somewhere other than in the territory of the state where they have sought, or intend to seek, protection.

Such policies-including "country of first arrival," "safe third country," and extraterritorial processing rules and practices-raise both opportunities and challenges for international refugee law. They have the potential to respond to the Refugee Convention's concern "that the grant of asylum may place unduly heavy burdens on certain countries" by more fairly allocating protection responsibilities among states. But insistence that protection be provided elsewhere may also result in the denial to refugees of their rights under the Refugee Convention and international law more generally. The challenge is to identify the ways in which the protection regime may be made more flexible without compromising the entitlements of refugees.

To this end, we have engaged in sustained collaborative study and reflection on the legal basis of protection elsewhere policies. Research conducted by the University of Melbourne's Research Programme in International Refugee Law





Cite as: James C. Hathaway, The Michigan Guidelines on Well-Founded Fear, 26 Mich. J. Int'l L. 493 (2005).





THE MICHIGAN GUIDELINES ON
WELL-FOUNDED FEAR

English / French / Russian / Arabic

Introduction
An individual qualifies as a Convention refugee only if he or she has a "well-founded fear" of being persecuted. While it is generally agreed that the "well-founded fear" requirement limits refugee status to persons who face an actual, forward-looking risk of being persecuted (the "objective element"), linguistic ambiguity has resulted in a divergence of views regarding whether the test also involves assessment of the state of mind of the person seeking recognition of refugee status (the "subjective element").

The view that the assessment of well-founded fear includes consideration of the state of mind of the person seeking recognition of refugee status is usually implemented in one of three ways. The predominant approach defines a showing of "fear" in the sense of trepidation as one of two essential elements of the well-founded fear test. In the result, refugee status may be denied to at-risk applicants who are not in fact subjectively fearful, or whose subjective fear is not identified as such by the decision-maker. A second view does not treat the existence of subjective fear as an





Cite as: James C. Hathaway, The Michigan Guidelines on Nexus to a Convention Ground, 23 Mich. J. Int'l L. 211 (2002).





THE MICHIGAN GUIDELINES ON
NEXUS TO A CONVENTION GROUND

English / French / Russian / Arabic

Introduction
Efforts to promote the contemporary vitality of the Convention refugee definition have usually focussed on refining our understanding of the circumstances in which an individual may be said to be at risk of “being persecuted,” or on giving contemporary relevance to the content of the five grounds upon which risk must be based—race, religion, nationality, membership of a particular social group or political opinion. Comparatively little thought has been given to how best to conceive the causal linkage or nexus between the Convention ground and the risk of being persecuted. In what circumstances may the risk be said to be “for reasons of” one of the five Convention grounds?

The jurisprudence of many leading asylum states is simply silent on this issue, while decisions rendered in other states assume that causation in refugee law can be defined by uncritical analogy to standards in other branches of the law. Only rarely have senior courts sought carefully to conceive an understanding of causation of specific relevance to refugee law, including the critical





Cite as: James C. Hathaway, The Michigan Guidelines on The Internal Protection Alternative, 21 Mich. J. Int'l L. 134 (1999).





THE MICHIGAN GUIDELINES ON
THE INTERNAL PROTECTION ALTERNATIVE

English / French / Russian / Arabic

Introduction
In many jurisdictions around the world, ‘internal flight’ or ‘internal relocation’ rules are increasingly relied upon to deny refugee status to persons at risk of persecution for a Convention reason in part, but not all, of their country of origin. In this, as in so many areas of refugee law and policy, the viability of a universal commitment to protection is challenged by divergence in state practice. These Guidelines seek to define the ways in which international refugee law should inform what the authors believe is more accurately described as the ‘internal protection alternative.’ It is the product of collective study of relevant norms and state practice, debated and refined at the First Colloquium on Challenges in International Refugee Law, in April 1999.
The Analytical Framework
1. The essence of the refugee definition set out in Art. 1(A)(2) of the 1951 Convention relating to the Status of Refugees (‘Refugee Convention’) is the identification of persons who are entitled to claim protection in a contracting state against the risk of persecution in their own country.

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