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.
Vol. 39, Associate Editor
The Joint Comprehensive Plan of Action (“JCPOA”) is an agreement between China, France, Germany, Russia, the United Kingdom, the United States, the European Union, and Iran. The agreement cuts off all of Iran’s pathways to developing a nuclear weapon. Under the JCPOA, Iran has dramatically rolled back its nuclear program. This includes, among other things, the removal of two-thirds of its centrifuges, and the shipping of 98% of its enriched uranium stockpiles outside of the country, with a 15-year limit of no more than 300 kilograms of enriched uranium, enriched to no more than 3.7% (weapons grade uranium is 90% enriched, and Iran had 20% enriched uranium prior to the implementation of the deal).
Claims that Iran could covertly violate the deal’s terms without being detected are unfounded. Ernest Moniz, nuclear physicist and the U.S. Energy Secretary at the time of the JCPOA’s negotiation and initial implementation, has said that the deal is not based on trust, but “upon verification as far as the eye can see.” Under the JCPOA, the International Atomic Energy Agency (“IAEA”) is given significant tools to monitor Iran’s compliance with the deal, which include gamma ray detectors, still and video cameras, electronic
Economic Law, Inequality, and Hidden Hierarchies on the EU Internal Market // pdf // repository
Currency Wars and the Erosion of Dollar Hegemony // pdf // repository
Ryan Scoville and Milan Markovic
How Cosmopolitan are International Law Professors? // pdf // repository
Refugees Without Borders: Legal Implications of the Refugee Crisis in the Schengen Zone // pdf // repository
Vol. 39 Contributing Editor
On March 1, 2017, the Independent International Commission of Inquiry on the Syrian Arab Republic released its report on the events in Aleppo and the “alleged violations and abuses of international human rights law.” Based on extensive evidence gathered through interviews and reviewing data that included satellite imagery, photographs, and medical records, the Commission concluded all parties involved had committed war crimes that had resulted in civilian deaths.
The Commission applied international humanitarian law (IHL) in reviewing the events in Aleppo. The Commission noted that the “methods and means” of warfare employed suggested a “wil[l]ful disregard” of the international humanitarian law rules of “proportionality and distinction” as well as the obligation “to take all feasible precautions to avoid incidental loss of life, injury or damage to civilian objects.” While this article focuses on the actions of the pro-government Syrian and Russian forces below, armed groups in opposition were also found to have violated IHL.
The continuous attacks and bombing of hospitals, markets, schools, water stations and other residential buildings by pro-government forces destroyed civilian infrastructure and resulted in dangerous consequences, particularly for women. For example, the bombing of residential buildings disproportionately affected women and children because they often
Cite as: James C. Hathaway, The Michigan Guidelines on Refugee Freedom of Movement, 39 Mich. J. Int'l L. 1 (2017).
THE MICHIGAN GUIDELINES ON REFUGEE FREEDOM OF MOVEMENT
English / French
Freedom of movement is essential for refugees to enjoy meaningful protection against the risk of being persecuted, and enables them to establish themselves socially and economically as foreseen by the Convention relating to the Status of Refugees (“Convention”).
The very structure of the Convention presumes the right to leave in search of protection,since a refugee is defined as an at-risk person who is “outside” his or her own country. Once outside the home state, the Convention makes express provision for rights not to be sent away (non-refoulement), to enjoy liberty upon arrival, to benefit from freedom of movement and residence once lawfully present, to travel once lawfully staying, and ultimately to return to the home state if and when conditions allow. Respect for refugee freedom of movement in its various forms is thus central to good faith implementation of the Convention.
The right of refugees to move has moreover been reinforced by the advent of general human rights norms in the years since the Convention’s drafting. Of particular importance is the International Covenant on Civil and
Vol. 39 Notes Editor
The exit of the UK from the EU has raised concerns amongst foreign investors amid the uncertainty of the future of the UK’s investment relationships. The UK maintains one of the largest bilateral investment treaty (BIT) networks in the world—the international community is interested in the UK’s position on the possible continuation, modification, suspension, or termination of these treaties. Although the UK has not stated its official position, it is likely that the UK will maintain its current foreign investment relationships with the EU and other non-member states, including international arbitration as the dispute settlement mechanism.
Foreign investment is an important part of the UK’s economy as there is an estimated £1 trillion in foreign direct investment in the country. A reason why investors are attracted to the UK is that investing in the UK brings access to the EU’s single market. Some argue that if the UK leaves the EU, the decrease in trade and increase in investment costs are likely to have an adverse impact on investors debating whether to choose to invest in the UK. Additionally, foreign investors might claim that Brexit frustrates their “legitimate expectations” as they no longer would continue to enjoy
Francis Tom Temprosa
LLM Candidate & Clyde Alton DeWitt Fellow
The recent series of expressions to withdraw from the Rome Statute, including Burundi’s successful withdrawal,[i] is not surprising to legal scholars who have closely watched events unfolding before the International Criminal Court (ICC).
Prosecutions at the ICC have raised deeper questions about complementarity, and whether the ICC is biased in its selection of situations to investigate and individuals to indict.[ii] Under a neo-colonialist critique of the court, many African leaders and intellectuals have argued that the ICC is a Western imperialist attack especially on Africans.[iii]
Yet, the ICC has operated against a backdrop of non-ratification of signatures to the treaty and looming intentions to withdraw for many years now. In 2002, U.S. President George W. Bush notified UN Secretary-General Kofi Annan that the United States had “no legal obligations arising from its signature” made during Clinton’s time.[iv] Russia, a signatory to the Statute, announced in November 2016 that it will distance itself from its signature after the court criticized it for actions in Crimea. Russia reasoned that the ICC “failed to meet the expectations to become a truly independent, authoritative international tribunal.”[v]
But this recent spate of intentions to withdraw brings concerns about the legitimacy
Vol. 39 Editor In Chief
Ius ad bellum and the notion of aggression have been a ‘yin yang’ for centuries. Nevertheless, international law did not prohibit states from engaging in aggression until the conclusion of the Kellogg-Briand Pact. Even then, the term was not defined. In the aftermath of World War II, the act of aggression was equated with ‘waging of war’ by the Nuremberg Tribunal. Twelve defendants were convicted of that crime. The trial constitutes the fundamentals of the modern understanding of aggression. The term is used twice in the UN Charter. Paragraph 1 of Article 1 lists as one of the Charter’s purposes “the suppression of acts of aggression or other breaches of the peace.” Article 39 empowers the Security Council to determine which acts constitute aggression. However, aggression is nowhere defined in the Charter. Instead, it imposes a general prohibition on the use of force in Article 2(4) and exceptions under Article 51 and Chapter 7.
In order to help the Security Council, faced with a definitional void, effectively carry out its duty under Article 39, the General Assembly promulgated Resolution 3314 as a guide for the political organ of the UN. The resolution defined aggression as a
Vol. 39 Production Editor
In January 2017, Japan recalled its ambassador to South Korea. This latest setback in the tense relationship between Japan and South Korea centers on a dispute over a statue located in front of the Japanese consulate in Busan. The statue depicts a ‘comfort woman,’ a reference to the thousands of women, many Korean, who were forced into sexual slavery by the Japanese Imperial government to be used by the Japanese military during World War II. This historical issue has created enormous tension between Japan and South Korea. In 2015, South Korea and Japan signed an agreement that was intended to put the issue to rest. When a civic group in Busan erected a ‘comfort women’ statue next to the Japanese consulate in Busan, the Japanese government claimed that South Korea had broken its agreement and violated the Vienna Convention on Diplomatic Relations.
Korea was under Japanese occupation until the end of World War II. Since 1981, two years after the reportedly pro-Japanese South Korean dictator Park Chung-hee was assassinated, 234 Korean women have accused the occupying government of Japan of forcing them into sex slaves for Japanese soldiers during World War II. The term comfort women has
Vol. 39 Contributing Editor
Microsoft just called for a monumental shift in international law—at a conference for coders and cryptographers. Brad Smith, Microsoft’s President and Chief Legal Officer, delivered the keynote address at February’s RSA Conference in San Francisco, urging governments to create a “Digital Geneva Convention”.
The vulnerability of companies and customers to state-sponsored hacking is acute, Smith argued. The 2014 North Korean hacking of Sony Pictures marked one startling incident; China’s thefts of American companies’ intellectual property, another. And the allegedly Russian-sponsored hacking of the Democratic National Committee remains fresh in the public’s mind. Even in state-on-state digital espionage, privately-owned property like submarine cables, data centers, laptops is often hit in the crossfire—sometimes intentionally, sometimes as collateral damage. Moreover, because 90% of the Internet’s infrastructure is managed by the private sector, “[a] cyber-attack by one nation-state is met initially not by a response from another nation-state, but by private citizens.”
Microsoft’s Proposed Solution
Microsoft’s proposed solution is a tripartite international legal regime. First, governments should enact a Digital Geneva Convention regulating proper state behavior in cyberspace and creating civilian protections.  Microsoft recommends six commitments, in particular:
No targeting of tech companies, private sector, or critical infrastructure.
Assist private-sector efforts to
Vol. 39 Managing Online Content Editor
Trends in electoral politics in nations across the world have given political expression to a rhetoric of nationalism that presents itself as a “turn away” from international cooperation. As the global community experiences the resurgence of nationalist and xenophobic rhetoric, public discourse on the future of international law remains increasingly focused on the tension between nationalism and the demands of international cooperation. While the international community bemoans these tragedies of the national commons, as it continues to articulate models for humanity’s shared future, it also important to contextualize these changes in the broader context of global change.
On the heels of her celebrated book, A New World Order, in 2006, with rising attention on transnational threats such as cross-border pollution, terrorist training camps, and weapons proliferation, American lawyer and scholar, Anne Marie Slaughter, argued that “the international legal system must be able to influence the domestic policies of states and harness national institutions in pursuit of global objectives.” In essence, her position was neither unique nor novel. It was a modern articulation of the decades old assumption of the existence of a singular and unilateral world-order—albeit dressed up with astute observations about the changing nature
Vol. 39 Articles Editor
Mexico City is sinking. So concludes a New York Times article detailing the implications of climate change for Mexico City. But the article also notes the most severe and immediate consequence of climate change for cities all over the world: the effect on fresh water resources. In many places, climate change will cause longer and more frequent droughts, while increased heat will cause an increase in evaporation of groundwater and a decrease in river-feeding snowpack. Critically, these effects will vary place-to-place, so changes will occur in not only water quantity but also water distribution. The result is that the world is about to see a massive shift in water-wealth and -poverty that will have drastic and potentially devastating effects on freshwater resources around the globe.
As the climate changes, cities and countries across a wide swath of the globe will struggle for increasingly scarce freshwater resources. This struggle will manifest in escalating international competition for transboundary water resources, those shared by more than one country. At present, these resources are governed by a patchwork of more than 3,600 agreements and state practices, including multiple multilateral agreements; bilateral and regional agreements governing individual bodies of water; and customary
Vol. 38 Associate Editor
Upon election to the highest office in the United States, President Donald Trump launched a spree of executive orders. One of these orders was the swift abandonment of the Trans-Pacific Partnership (TPP), a trade deal that his predecessor, Barack Obama, had worked for years to implement. The TPP was a plan to unite twelve nations of the Pacific Rim and the United States, a partnership accounting for forty percent of the world’s GDP, in a pact of free trade. The plan would cut tariffs and decimate other potential obstacles to trade, such as investment restrictions and blocked data transfers. The TPP would have been especially beneficial for the American services industry, including business, finance, and information, a slice of the global economy in which the United States still maintains a semblance of supremacy. The deal would have opened doors for sectors such as finance, software, and legal services by reducing domestic red tape in the partner nations.
The debate surrounding the TPP created unlikely bedfellows, as Senator Bernie Sanders aligned with President Trump on the need to abandon the deal, while even prominent Republicans such as Senator John McCain have vocally opposed the President’s order. The competing
Volume 38 Associate Editor
The Arctic is having an unusually mild winter. In February, the region experienced a period of unseasonably warm weather, with the temperature being twenty degrees warmer than the average. This is the third time this year that dramatically higher than average Arctic temperatures have been recorded.  At the same time, on the opposite end of the globe in Antarctica, sea ice is at the lowest level ever recorded. The climate is changing, and as it does, it is exacerbating existing vulnerabilities in regions across the globe, having a direct effect on the people who live in areas directly impacted by climate change.
Rising sea levels, desertification, and other consequences of climate change are forcing people to leave their homes in search of food, water, or security. UNHCR estimates that, annually, 21.5 million people are forcibly displaced by weather-related disasters. As temperatures continue to rise, more and more people will be forced to leave, as all regions of the globe will be affected by climate change. Currently, the largest displaced population is from Asia, accounting for 85 percent of the total population.
Unfortunately, the current international legal framework is not equipped to address needs of this pending influx
Vol. 39 Managing Editor
Family law permeates many major contemporary international issues, yet it is rarely discussed alongside international law. Issues at this cross-section are full of complexities and curious combinations of international law and domestic custody law. Custody disputes under The Hague Convention on the Civil Aspects of International Child Abduction (“Convention”) are a particularly relevant and increasingly prevalent example of this intersection between family law and international law. Cases brought under the Convention bring to light the difficulties that institutions face when applying laws, crafted at the international level with a broad mission to the domestic and local levels. Though helpful in the fight against child abduction, the Convention is not without its limitations. A stronger scholarly movement for review and reform is necessary.
The Convention is a multilateral treaty designed to protect children from “wrongful removal or retention” to other countries not their own and to institute measures that will enable the return of the child. Today 81 countries, including the United States, have adopted the treaty. The Convention is mostly procedural in content and seeks to halt and take away “any legal advantage actual and would-be abductors might hope to derive from such actions…thereby safeguarding the best
Vol. 38 Associate Editor
Large international financial institutions (IFIs) have increasingly been experimenting with enclave projects over the past two decades in efforts to develop the territories and promote long-term growth of less developed countries. These IFIs, including major banks such as the World Bank, the International Monetary Fund (IMF), and the Inter-American Development Bank (IDB) aim to assist member countries to foster development of foreign trade and investment as a means of spurring economic growth. One means of doing so has been through the implementation of an enclave project in a specific region of the less developed country.
Enclave projects are generally known as large production-oriented investment projects that import a sophisticated production system into the local economy, operate with a high degree of autonomy, and export the produced goods out of that community thereby generating foreign exchange. These enclave projects would initially carve out a certain area of land and grant it legal independence to facilitate the extraction and the subsequent exportation of resources such as hydroelectricity, coal, and gas. One significant benefit of enclave projects is that investors can be assured that the projects are for the most part insulated from the external forces of the host country’s
Vol. 38 Associate Editor
After just a few weeks in office Donald Trump has already threatened to violate international law. I’m not talking about his executive orders banning refugees from entering the United States, or his re-implementation of the global gag rule; I’m talking about his desire to revive enhanced interrogation techniques, also known as torture. On January 25, it was reported that a draft executive order, entitled “Detention and Interrogation of Enemy Combatants,” if signed, would begin a review process that could eventually lead to the re-opening of C.I.A. black site prisons, and the reinstatement of torture. The order would specifically have revoked the Obama-era order that closed the black site prisons and limited interrogation techniques to those in the Army Field Manual, which “prohibits waterboarding, prolonged sleep deprivation and other enhanced interrogation techniques.” As of February 4, it appears as though the administration has walked back the terms of the order and, in the latest draft, no longer plans to revoke Obama’s executive order or pursue an evaluation of whether C.I.A. black site prisons and torture should be used.
But, we’re not out of the woods. The executive order is still in draft form, and could continue to change
Vol. 38 Associate Editor
Over the past year, there have been numerous events indicating that populism is on the rise in the Western world. Though the particular forms of these individual events may vary, a common thread linking them together is a desire to retreat from globalization to the perceived safety of protectionism. While a retreat from globalization would likely have steep consequences for a number of market sectors, one sector that may prove to be especially vulnerable is the financial sector. Arguably still reeling from the lingering effects of the 2008 financial crisis, the international financial sector is already under pressure from events that appear to indicate a retreat from globalization by the West, such as Brexit. Furthermore, as Western nations have traditionally occupied significant leadership positions within the international financial system, their shift towards more protectionist stances would likely create a substantial leadership vacuum within this system. Should Western nations continue to retreat from globalization, the question arises as to who will emerge as a leader and how they will shape the future of international finance and trade.
With respect to potential new leaders of globalization, China emerged as a surprising candidate during the World Economic Forum’s conference in
Vol. 38 Associate Editor
In July 2016, the Permanent Court of Arbitration (PCA) in The Hague ruled against China over territorial claims in the South China Sea. China asserts sovereignty over a region containing the island of Taiwan, as well as areas claimed by China’s neighbors. China rejected the court’s ruling on the grounds that the PCA did not have authority to hear the case and maintains its claim on the territory. This stance by China parallels actions taken by other world superpowers (and permanent members of the United Nations Security Council) such as the United States, Russia, and United Kingdom, in which they also seem to ignore rulings by international tribunals. If the most powerful countries in the world feel free to disregard international law, there is a question of whether this is indeed a rising trend and what implications such a trend might have for the future of the international system. This inquiry is even more pertinent in light of shifting tides around the world and the new, outspokenly isolationist regime in the United States.
Critiques of China’s rejection of the ruling from the United States drew allegations of hypocrisy from China, particularly regarding the U.S.’s dispute with Nicaragua
Vol. 38 Contributing Editor
In mid-January, the U.S. military deployed the 3rd Armored Brigade Combat Team, 4th Infantry Division to Poland. The deployment is the largest United States military deployment since the end of the Cold War and is intended to deter Russian aggression in Eastern Europe. Poland has been a signatory to the North Atlantic Treaty (establishing the North Atlantic Treaty Organization, or “NATO”) since 1999, when it joined the organization during NATO’s first major post-Cold War expansion. The core provision of the North Atlantic Treaty states that if one party is subject to an armed attack, that attack shall be considered an attack against all parties. This triggers the right to collective self-defense provided in Article 51 of the United Nations (UN) Charter, which would allow all NATO parties to use armed force against the initial attacker “in order to restore and maintain the security of the North Atlantic area.”
The critical question in today’s evolving combat environment is how to define an “armed attack” that would trigger the right to collective self-defense. When NATO was first created in 1949, the concept of an armed attack was fairly straightforward given the technological limitations of the era. However, the recent
Vol. 38 Associate Editor
There is no clearer example of the failure of the UN to halt mass atrocities and genocide than the current conflict in Syria. Nearly six years, hundreds of thousands of lives lost, and millions of refugees later, the UN has repeatedly failed to effectively take action in protecting Syrian civilians. In fact, the situation devolves year after year without a solution in sight. The dire need for humanitarian intervention in Syria is begging for a response from the international community and the invocation of Responsibility to Protect (R2P), an emerging norm in international law that places a responsibility on the international community to prevent and react to mass atrocities. R2P was intended to address genocide, war crimes, crimes against humanity and ethnic cleansing, all crimes that the Assad regime has been committing in Syria for the past six years. The doctrine was adopted at the World Summit in 2005 in response to the failures of the international community to intervene in the humanitarian crises in Rwanda, Bosnia and Kosovo. So why does R2P even exist if no one invokes it when it is most needed?
The doctrine itself is not at fault, but rather the institutions that
Vol. 38 Associate Editor
Certain U.S. Immigration Court jurisdictions, by almost never granting asylum, arguably violate international law obligations on fair hearings for asylum-seekers. The problem of highly restricted access to asylum will worsen under the Trump administration. Despite possible small measures to alleviate the situation, not much will change unless and until the arrival of a future Presidential administration and Congress more concerned with international human rights obligations.
According to a coalition of U.S. law scholars and non-governmental organizations (NGOs) that presented at a December 2016 Inter-American Commission on Human Rights (IACHR) hearing, certain U.S. Immigration Court jurisdictions violate the due process protections of the American Declaration on the Rights of Man. These advocates call these jurisdictions “asylum-free zones” – Immigration Courts where almost no asylum applicant succeeds and which thus deny applicants a fair adjudication.
The advocates explained that U.S. Immigration Courts, which are administrative law courts run by the Department of Justice’s Executive Office for Immigration Review (EOIR), exhibit severe disparities between jurisdictions in terms of defensive asylum grants to non-citizens in removal proceedings. Legal scholars and the U.S. Government Accountability Office (GAO) have repeatedly documented these disparities. Whereas the average nationwide asylum grant rate is about 50%, in
Laurence R. Helfer and Ingrid B. Wuerth
Customary International Law: An Instrument Choice Perspective
Human Trafficking in Southeast Asia: Uncovering the Dynamics of State Commitment and Compliance
Ambivalent Enforcement: International Humanitarian Law at Human Rights Tribunals
C. Elizabeth Bundy
Rescuing Policy and Terror Victims: A Concerted Approach to the Ransom Dilemma
Download Volume 37:4 at the Repository
Oil Under Troubled Waters?: Some Legal Aspects of the Boundary Dispute Between Malawi and Tanzania Over Lake Malawi
Patrick J. Keenan
The Problem of Purpose in International Criminal Law
The European Union's Human Rights Obligations Towards Distant Strangers
To Touch and Concern the United States with Sufficient Force: How American Due Process and Choice of Law Cases Inform the Reach of the Alien Tort Statute After Kiobel
Download Volume 37:3 at the Repository
Vol. 38 Associate Editor
Can white extremists be challenged, without challenging the role of white ideology in international law? As white nationalism achieves international visibility once more, this is a crucial question for all those interested in using international law to a craft a world that transcends, at the very least, race, gender, and class. In the past few weeks, white extremists across the world felicitated the results of the American presidential election as a sign of global resurgence of white nationalism. While white supremacist ties to the American president-elect have sent shockwaves throughout the world, the result and the widespread global presence of these forces should not come as a shock, but rather, must be properly understood as the product of the dominance of white supremacist jurisprudence in international law. This discussion presents an overview of the origins and development of white jurisprudence, a description of its relationship to international law, an overview of the intellectual forces that resist it, as well as some thoughts on the role of international law in breaking cycles of supremacy.
White supremacy is the belief that the white ‘race’ is superior to all races, and that white ideologies and systems derived from the histories
Jessica (Tae Yean) Kim
Vol. 38 Associate Editor
On June 17, 2016, the Senate of Canada passed Bill C-14, enacting a new federal law which legalized physician-assisted suicide (PSA) in Canada. This new legislation makes Canada one of the few nations where doctors are lawfully permitted to help terminally ill people die. An interesting aspect of the new law is that it excludes non-Canadians, preventing the prospect of suicide tourism from the U.S and elsewhere. Suicide tourism which is often referred to as “death tourism” can be defined as the phenomenon of individuals traveling abroad in search of assisted dying. The issue of “death tourism” has been so controversial that Swiss journalists coined the term “strebetourismus,” a German word for “death tourism” as Word of the Year for 2007.
The United Kingdom is at the forefront of this global phenomenon. According to the statistics from the University of Zurich, terminally ill British citizens formed the second largest group of European residents traveling abroad to Switzerland to die between 2008 and 2012. English law strictly forbids citizens from seeking medical assistance to end their lives. England continues to have one of the most restrictive legal positions in Europe with respect to assisted suicide. That