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.
Luca Winer, Associate Editor, Michigan Journal of International Law
Even though the United States does not make any territorial claim to the Spratly Islands, it still has important legal and strategic interests in what plays out in the South China Sea.[i] The Spratly Islands, unprepossessing in and of themselves, are important in two primary ways: economically and geo-strategically. Economically, the islands provide fish resources as well as possible natural gas and oil extraction. [ii] Moreover, whichever nation controls the Islands also has the legal rights to whatever lies within the 200 nautical miles of “exclusive economic zone” surrounding them.[iii] Maintaining freedom of navigation through the South China Sea, especially through the choke points of the Straits and Malacca and Taiwan Strait, is a fundamental regional security requirement for not only the United States, but for any country with major economic and military interests in the Pacific.[iv] These include each of the six claimants[v] to the Islands. Unsurprisingly, every one of the six asserts claims under various principles of international law and the UN Convention on the Law of the Sea (UNCLOS) to bolster their conflicting claims of sovereignty to the region. The United States, the strongest Pacific power not staking its
Timothy Garcia, Associate Editor, Michigan Journal of International Law
“The Parties agree that an armed attack against one or more of them in Europe or North America shall be considered an attack against them all. . .”[i]
In the wake of Russia’s annexation of Crimea in March, a 2008 North Atlantic Treaty Organization (NATO) decision suddenly took on tremendous significance. Six years ago, NATO refused Ukraine a path to membership due to German and French misgivings. The French and German fears likely arose in part from Moscow’s opposition to Ukrainian or Georgian membership in NATO.[ii] Since the recent 2014 annexation, NATO members have split in their analysis. France and Germany believe NATO would now be at war with Russia had they admitted Ukraine while the United States and several of the Eastern European nations argue that Ukraine’s membership in NATO would have deterred Russian aggression in the region.[iii] White this question highlights the issue and debate in Europe, it is far more important for its future implications for collective security in Europe than for its particular facts.
Thus far, the European Union (EU) has been content to keep NATO as “the transatlantic framework for strong collective defence.”[iv] However, only 22 of the 28
David Angel, Associate Editor, Michigan Journal of International Law
The European Central Bank’s (ECB) struggle to improve economic performance in the Eurozone demonstrates how divergent interests among European member states can inhibit cooperation and lead to ineffective policy. Post-crisis economic growth in the Eurozone has been sluggish relative to other major developed economies,[i] and many have called on the ECB to employ more aggressive, unorthodox monetary policies in an effort to break out of the slump.[ii] Specifically, many are encouraging the ECB to emulate other advanced economies and engage in large-scale asset purchases from Eurozone banks, in a maneuver typically referred to as “quantitative easing” (QE).[iii] QE is thought to have a number of beneficial impacts, like encouraging banks to make more loans to consumers and businesses with the money they earn from asset sales to the central bank.[iv] The ECB has indicated that it will engage in limited QE, purchasing asset-backed securities (packages of home, commercial, and other loans that are bundled and sold to investors) and as yet undefined bonds from Eurozone banks.[v] However some observers argue that confining QE purchases to asset-backed securities will be ineffective, as the ECB will simply not be buying enough assets from banks
Megan Pierce, Associate Editor, Michigan Journal of International Law
As asserted by the United Nations Expert Mechanism on the Rights of Indigenous Peoples (EMRIP), “[i]ndigenous peoples are among the most excluded, marginalized and disadvantaged sectors of society. This has had a negative impact on their ability to determine the direction of their own societies, including in decision-making on matters that affect their rights and interests.”[i] Over the last several decades, an international system of legal rights and protections belonging to indigenous communities has grown and strengthened, culminating recently in the United Nations Declaration on the Rights of Indigenous Peoples.[ii] Recognizing the significant and serious injustices suffered by indigenous communities around the globe[iii], international society, led by the UN, has begun to address the question of how to alleviate and reverse the negative consequences of these injustices, as well as protect the rights and autonomy of indigenous communities. After twenty years of deliberation between representatives of indigenous groups and states in which indigenous groups had an unprecedented influential voice, UNDRIP was affirmed with the support of 143 member states in 2007.[iv] The UNDRIP has emerged as the most recent and prominent document defining the rights of indigenous peoples, and the central principle
Melanie Capuano, Associate Editor, Michigan Journal of International Law
The Islamic State (also known as ISIS, the Islamic State of Iraq and Syria, or ISIL, the Islamic State of Iraq and the Levant) has captured the world’s attention with its recent acts of brutality, including mass executions and videotaped beheadings.[i] Under the leadership of Abu Bakr al-Baghdadi, the Islamic State aims to establishing a caliphate, a united Islamic state under the legal code sharia.[ii] A recent CIA estimate puts the number of Islamic State fighters across Iraq and Syria at as many as 31,500.[iii] This figure, in conjunction with the vast territory now under the terror group’s control and the sizable funding available to the Islamic State makes them a powerful jihadist group that rivals Al Qaeda.[iv] It has become apparent to the White House that action must be taken in order to put a stop to the activities of the Islamic State. President Obama, who was elected in part because of the fervent opposition to the invasion of Iraq in 2003, said in his recent speech to the nation, "I have made it clear that we will hunt down terrorists who threaten our country, wherever they are."[v] President Obama laid
Kelsey Vanoverloop, Associate Editor, Michigan Journal of International Law
Though reports show that the number of unaccompanied minors attempting to cross the U.S.-Mexico has diminished compared to this summer, the crisis is far from over. [i] According to Jeh Johnson, Secretary of the Department of Homeland Security (DHS), “[w]e continue to have much work to do to address this issue and our message continues to be clear- ‘our boarder is not open to illegal migration.’”[ii] Nevertheless, while these children may be breaking American law when they attempt to enter the country illegally, once they are inside US borders, the United States has a responsibility to ensure their safety and protect their rights under international law. The United States greatly contributed to the economic and political conditions in these countries[iii] and now we are dealing with the consequences in the form of a mass migration.[iv]
From October 1, 2013 to July 31, 2014, almost 63,000 unaccompanied children were caught at the U.S.-Mexico boarder, compared to almost 31,500 in the previous year during the same time.[v] Though some lawmakers blame polices like Deferred Action for Childhood Arrivals (DACA)[vi] for the increase, the real reasons go much deeper. The majority of children arriving come from
Michael Garcia, Associate Editor, Michigan Journal of International Law
Much of the scholarship surrounding law and development has ignored legal aid in favor of an emphasis on more high profile institutions and issues. Issues such as the effectiveness of a “rule of law” approach,[i] the importance of legal reforms calculated to attract foreign investors,[ii] or supporting judicial independence from state government[iii] are no doubt necessary steps towards fostering legitimacy, transparency, and justice in developing countries. One could argue that it is a fundamental problem, however, when Western intellectual influence and investment in a developing country like Cambodia result in little more than a formalist legal system[iv] that no one outside of the entrenched political elites can understand or utilize. There is real value to the creation of an inclusive legal culture that the population in developing countries can trust, even if there are no easy answers as to how we get there.
Cambodia consistently ranks in the bottom fifth of countries in the world in corruption and rule of law measurements.[v] For the legal system to be legitimate in the eyes of Cambodians, there will need to be more than private sector and investment reforms promised by the ruling Cambodia People’s Party
Julie Kornfeld, Associate Editor, Michigan Journal of International Law
On August 7, 2014 the Extraordinary Chambers in the Courts of Cambodia (hereinafter ‘the ECCC’) entered a historic verdict for Cambodian and international jurisprudence. The ECCC found two defendants guilty of crimes against humanity, persecution on political grounds, and other inhumane acts.[i] The defendants, Nuon Chea, the Deputy Secretary of the Communist Party of Kampuchea (CPK), and Khieu Samphan, the Head of State of the CPK, were sentenced to life imprisonment.[ii] This case, known as 002-1, marks the second time the ECCC has reached a guilty verdict.[iii] The verdict brings long awaited justice to Cambodians who have waited 35 years for a conviction to affirm that Khmer Rouge leaders were complicit in some of the worst human rights abuses of the second half of the 20th century. The verdict also has implications outside Cambodia’s borders. As one of the few examples of an alternative mixed tribunal, the ECCC shows how international and domestic criminal law can successfully interact with each other.
The ECCC is a hybrid criminal court that involves shared duties between the United Nations and the Royal Cambodian Government.[iv] Discussions about the creation of a tribunal to prosecute crimes committed by the
Daniella Regencia, Executive Editor of the Michigan Journal of International Law
While most followers of pop culture are currently waiting with bated breath for the White House’s response to the deport Justin Bieber petition, another young pop star is bringing to the spotlight questions of foundational legal principles. Liam Payne, of the boy band One Direction, came under fire for sending a Twitter message to Duck Dynasty patriarch Willie Robertson in support of his “family values” and for later posting a Twitter rant where he espoused the ideals of free speech. Free speech has long been a hallmark of the American legal and cultural tradition, but Payne hails from the United Kingdom. The UK, while frequently America’s staunch supporter, diverges greatly from our tradition in this area of law.
Freedom of speech in the UK is governed by common law and parliamentary acts. The foundational statute for freedom of expression is the Human Rights Act of 1998. This act incorporated the European Convention of Human Rights into the UK’s domestic law. Since that time, a number of cases have been decided interpreting this Act. One of the earliest cases to balance a newspaper’s right to freedom of expression with an individual’s right
Gracie Willis, Associate Editor, Michigan Journal of International Law
In October 2012, Uruguay passed into law a regionally unique system providing for women to have access to abortive services. In June 2013, the law withstood a call for repeal by referendum. To repeal the law, a full quarter of the population would have been required to vote. In the end, not even one-third of that number turned out. With the law withstanding the challenge and secure from repeal, abortions during the first trimester are currently legally accessible for women in Uruguay. Uruguay’s law is considered a victory for advocates of reproductive justice and access to reproductive health within the conservative region of Latin America. In that way, it is useful to situate it in comparison to other Latin American countries to evaluate the extent of the difference and the character of the law itself.
The Uruguayan Law
Prior to the passage of the abortion bill in October 2012, abortion in all forms was criminalized in Uruguay. The primary function of Law 18.987, Interrupción Voluntaria Del Embarazo, was to decriminalize first trimester abortions for Uruguayan women. In addition, the law sets out requirements for the decriminalized procedure along with exceptions to criminalization after the
Ian Murray, Associate Editor, Michigan Journal of International Law
While the overall scope and accompanying costs of global climate change remain uncertain, one aspect of the international environmental landscape is presently clear: water (clean water in particular) is becoming increasingly scarce. Due in part to the intensifying depletion of underground fresh water aquifers, over 2 billion people lack access to clean water on a daily basis, and another 1 billion people do not have enough water to meet basic daily needs. Policy debates surrounding the implications of global climate change abound, but the reality on the ground suggests that the world is already dealing with the initial effects of a global water crisis. The effects of the looming global water crisis will only be exacerbated as the world presses further into the 21st century, with international tensions likely to develop as the battle for previously untapped water sources begins. Some of these untapped water sources will likely come in the form of coastal undersea freshwater aquifers, a form of fresh water that has only been recently discovered and has never before been accessed for the purposes of mass domestic or industrial use. International competition for the rights to the water contained
Josh La Vigne, Associate Editor, Michigan Journal of International Law
Addressing Internet gambling provokes substantial debate. The two options for completing this task are prohibition and regulation. Due to the strong moral arguments against gambling in general, the debate involves much more than innocuous technical concerns in attempting to reach the “right” answer. This post will approach the issue from the viewpoint that regulation is the proper avenue and discuss some of the barriers involved in implementing a regulation strategy. These barriers include the “borderless nature” of the Internet, differing opinions on the morality of gambling, and variance in tax rates among jurisdictions.
At the base level, regulation by a single country will likely be insufficient. Due to the “borderless nature” of the Internet, efforts to regulate Internet gambling would be severely undermined, if not completely ineffective, without some type of international consensus. Due to the aforementioned nature of the Internet, providers of online gambling services are free to locate in the jurisdiction of their choice and reach users all over the world. Without international regulation, providers are free to dodge regulations of one country or state by simply moving to another jurisdiction with fewer restraints and regulations.  International consensus is necessary
Daniella Regencia, Associate Editor, Michigan Journal of International Law
Since its inception the United States has been a place for the wanderers of the world to come and start a new life. As of 2012, legal permanent residents made up about four percent of America’s population. The undocumented immigrant population as of 2012 was estimated to be around 11.5 million, or 3.67 percent of the population. There are also foreign-born citizens who would have been considered immigrants at one point, therefore adding overall to the number of immigrants who have come into the United States.
The European Union has a similarly sized immigrant population. The foreign-born population in the European Union was about 20.7 million people in 2012, or 4.1 percent of the population. Undocumented immigration has not been as widespread of an issue in the European Union until recently.  One estimate has the undocumented population in the United Kingdom as 900,000, or 400,000 more than Italy, which has the next largest undocumented immigrant population in Europe. These statistics show that migration is alive and well in the United States and the European Union and, therefore, sensible polices will have to be created and implemented.
In the United States, the last major
Gracie Willis, Associate Editor, Michigan Journal of International Law
In June and July of 2014, millions of people will travel to Brazil for the 2014 FIFA World Cup. In preparation for this event and the 2016 Olympic Games in Rio de Janeiro, the Brazilian government has pumped billions of public and private dollars into a new infrastructure. Part of Brazil’s struggle to update key areas and develop a supportive infrastructure is to deal with the problem of favelas, or Brazilian slums. The municipal governments, in removing favela residents, purport to be assisting the residents, imparting that the slums are inappropriate and dangerous places to live. Officials state that they are offering former residents dignity by offering them compensation packages for their homes. In reality, those who don’t accept the “pittance” offered for their self-built homes (often family homes spanning generations) are evicted anyway. The UN Special Rapporteur on the right to adequate housing, Raquel Rolnik, has stated that she is “concerned about the very limited compensation offered to the communities affected, which is even more striking given the increased value of real estate in locations where building is taking place for these events. Insufficient compensation can result in homelessness and
Rory Pulvino, Associate Editor, Michigan Journal of International Law
Many people in the developing world suffer under extractive institutions, governments that don’t have the infrastructure or possibly the motivation to protect its citizens from harm. Within these jurisdictions poor citizens must endure genocide, cruel or inhuman treatment, torture, forced labor and many other civil right violations for which the U.S. gives redress. Many of these abuses are perpetuated by large corporations that seek to exploit the resources and people in the developing world, knowing that these countries lack the inclusive government structures to hold them accountable. Given these harms and the lack of legal recourse within the countries where the injuries occur, some of these victims have sought relief in countries such as the United States and the United Kingdom, or in international courts. Recent signs and decisions from the Supreme Court of the United States have implied limiting such claims due to serious policy and jurisdictional concerns. In contrast, the United Kingdom may have recently signaled a move towards opening such avenues for alien claims to be brought within British courts.
Passed during the First Congress in 1789, the ATS originally envisioned allowing claims on at least three bases: “violation of
Ian Murray, Associate Editor, Michigan Journal of International Law
Regulation surrounding recent shale oil and gas development and extraction in the United States is largely in the hands of individual states, but it remains to be seen if this regulatory approach will be readily replicated in the international energy landscape as shale markets start to emerge in Europe, Asia, Africa, and South America.
The United States and Canada are often thought of as the major players in the shale oil and gas commercial markets, but nonconventional oil and gas extraction is becoming increasingly popular worldwide. Gas and oil, when extracted from shale, offer an opportunity for nations to dramatically lower the cost of natural gas, an opportunity borne by the mechanism of vastly increasing domestic energy self-sufficiency. However, a decision to push towards shale exploration (and more broadly shifting from domestic oil and gas import to domestic oil and gas export) comes with significant costs, namely environmental concerns and the issue of cutting ties with traditional oil powers in the Middle East. As a result, international political agendas and the push towards regional or continent-specific regulatory schemes in several geographic areas of the world will likely be major factors included in the
James C. Hathaway
"Introduction to the Sixth Colloquium on Challenges in International Refugee Law"
Sixth Colloquium Participants
"Michigan Guidelines on the Exclusion of International Criminals" // English | French
"Principled Exclusions: A Revised Approach to Article 1(F)(A) of the Refugee Convention"
Jens David Ohlin
"Targeting and the Concept of Intent"
Uche Ewelukwa Ofodile
"Africa-China Bilateral Investment Treaties: A Critique"
"Courts of Appeal and Colonialism in the British Caribbean: A Case for the Caribbean Court of Justice"
Download Volume 35:1 at the Repository
Rory Pulvino, Associate Editor, Michigan Journal of International Law
The right of security of land tenure has vast implications for the possible improvement of those living in developing countries. This right has been interpreted as the right of every person and group to effective protection by the state against forced evictions, the possibility of selling and transferring, and the possibility of utilizing land as credit. By securing land tenure people are more confident in and more able to assert other ‘sticks’ in the bundle of land rights such as the “way in which the land may be used, the profit that may be derived from it, or the manner in which some or all of the rights may be disposed of.” Security of tenure begins with recognition by outside parties, including the state, of the rights of use, ownership and possession to a parcel of land. This recognition can be and likely must be secured through a variety of registration systems ranging from the informal/customary to the formal. State recognition of land registration strengthens tenure security, a right secured under the right to adequate housing and may be the beginning of strengthening ties of people to their land which has vast
Alexandre Klidonas, Associate Editor, Michigan Journal of International Law
As the Greek parliament continues to approve new austerity measures, two political parties have emerged that advocate the abandonment of the euro currency. Formed in May, the Drachma Five party has called for a return to the drachma, the currency replaced by the euro in 2002. Similarly, the Plan B party, which launched earlier this year, has urged that Greece return to its national currency. The Plan B party’s leader, Alekos Alavanos, has opposed the austerity measures and has advocated that Greece depart from the Eurozone, the term that refers to the seventeen European Union member states that have adopted the euro currency. Mr. Alavanos has stated that leaving the common currency would be a “little shock” but through devaluation of the drachma, the country would benefit from the return of its national currency.
The formation of these two political parties comes amid declining support for the euro currency in recent months. 59 percent of Greeks support the euro, down from 70 percent. Negative views of the euro have increased to 38 percent as the number of Greeks who believe that the country is heading in the wrong direction has grown.
In light of
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
European Integration Through Law: Judicial Review of the Eurozone Crisis in European National, Regional and Supranational Courts
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.
Michigan Law Article
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
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