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.
Vol. 39 Associate Editor
On October 27, 2017, Burundi became the first country to withdraw from the International Criminal Court (ICC). Its withdrawal is presumed to be an attempt to elude scrutiny of the carnage ensuing since President Pierre Nkurunziza made a third bid for the presidency in 2015. The Nkurunziza administration is accused of committing crimes against humanity, including killing, torture, sexual violence, and forced disappearance. Burundi, however, cites the Court’s fixation on the African continent as the reason for its exit. The ICC began a preliminary examination of the crimes in April of 2016. Burundi’s withdrawal does not affect the investigation of alleged crimes committed during the period it was still a member of the Court, but its withdrawal has serious implications for the legitimacy of the Court.
Established by the Rome Statute in 1998, the ICC is the world’s only permanent international criminal tribunal. The principal goal of this court is to bring perpetrators of the most atrocious international crimes to justice, namely the crime of genocide, crimes against humanity, war crimes, and the crime of aggression. At present, 124 countries are states parties to the Rome Statute. The United States is noticeably absent among the assembly of
Vol. 39 Associate Editor
With ever-changing and developing technology, a growing concern in the field of international law stems from cyberspace security. In an effort to combat and alleviate this growing concern, a group of international law experts joined together to produce the Tallinn Manuals. The Tallinn Manual 2.0 is the most updated and current manual, and it focuses on the more common, daily cyber incidents, those that do not meet use of force or armed conflict thresholds. The mission statement of the Tallinn Manual 2.0 is to “enhance the capability, cooperation and information sharing among NATO, NATO nations and partners in cyber defence by virtue of education, research and development, lessons learned and consultation.”
Though the Tallinn Manuals have proven to be useful in lessening some of the confusion inherent in international cyberspace law, the lack of consensus among the experts has created substantial gray zones. The concerns about these zones have become even more publicized as a result of the recent Russian cyber interference in the 2016 presidential election, in which a gray zone of international cyberspace law was successfully exploited. Though there are multiple “critical grey zones of international law that are susceptible to exploitation when conducting cyber
Vol. 39 Associate Editor
Today, human trafficking remains the fastest-growing criminal activity in the world, generating billions of dollars annually and enslaving an estimated 46 million people. States have been working together to combat slavery and human servitude for over two centuries: Sovereign states began to pass legislation banning the slave trade from the early 1800s. And in 1926, the Slavery Convention was ratified by the League of Nations.
Has International Law been effective in combatting slavery?
The Slavery Convention was a major condemnation of slavery on a global scale. Although the treaty contributed towards the creation of an illegal market for slave labor, it provided a definition of slavery at the level of international law  and helped to coordinate efforts to prevent and suppress the slavery industry. In its day, the Slavery Convention reflected an expanding global consensus and the legal codification of a hard-won international norm.
In 1945 the United Nations was formed, and three years later the Universal Declaration of Human Rights (UDHR) was adopted. The UDHR strengthened the normative attacks on slavery at the international level by clearly identifying slavery as a violation of Human Rights. In 1976, two more instruments joined the global fight against slavery: the International
Vol. 39 Associate Editor
In 1994, Ukraine’s then-President Kuchma surrendered the remaining portion of the Soviet nuclear arsenal on Ukraine’s territory for security assurances from the United Kingdom, the United States, and the Russian Federation. The language of the agreement reflects a delicate power balance at the end of the Cold War and, at the time, was a solution to a potential crisis of nuclear weaponry falling into nefarious hands. The Budapest Memorandum on security assurances to Ukraine turns twenty-three this year, but the last three years of Russian-Ukrainian relations have rendered the security assurances of the agreement moot.
Although ninety-three states have signed and 191 states are party to the Treaty on the Non-Proliferation of Nuclear Weapons (NPT), the number of states that have had nuclear weapons and surrendered them to become non-nuclear states is quite low. In fact, the three former Soviet states which signed the Budapest Memorandums – Ukraine, Belarus, and Kazakhstan – and South Africa are the only ones which possessed nuclear weapons and voluntarily became non-nuclear states. Additionally, these four cases of nuclear disarmament occurred at major turning points in each state’s security, with South African disarmament occurring after a ceasefire agreement in a regional conflict
Vol. 39 Associate Editors
The 1957 Treaty of Rome created the European Economic Community—the forerunner of the European Union (EU). The treaty’s first proclamation was that it was “determined to lay the foundations of an ever-closer union among the peoples of Europe.” The “ever-closer union” language has become a mainstay of European Union treaties and declarations. Broadly speaking, Europe has become closer. In 1993, the EU became a single market—which allowed the free movement of goods, services, and people within the EU. In 1999, eleven (today it is nineteen) EU states adopted a uniform currency, the Euro. But today the idea of an ever-closer union is threatened. In fact, it appears it is breaking apart.
Across Europe, each election cycle brings a similar message. Traditional, pro-EU parties get fewer votes and nationalist, anti-EU parties gain more. In May, a candidate who promised to “release France from the tyranny” of the EU placed second in the French presidential elections. On September 26, in Germany, the anti-European Union Alternativ für Deutschland (AfD) finished in third-place in parliamentary elections—despite Germany previously being one of the few European countries without influential Eurosceptic parties. Of course, the most famous recent manifestation of displeasure with the EU
Maya Jacob & Hunter Davis
Vol. 39 Associate Editors
In June 2017, Bangladesh’s Deputy Consul General in New York, Mohammed Shaheldul Islam, was charged in a 33–count indictment for crimes related to labor trafficking and assault. Islam brought another Bangladeshi man, Mohammed Amin, to the United States in 2012 or 2013 to serve as a domestic worker. Upon arriving in the U.S., Amin was stripped of his passport and forced to work 18 hour days. Amin was never paid. On several occasions, Islam beat Amin with his hands or a wooden shoe. When Amin tried to leave, Islam threatened to harm Amin's family in Bangladesh.
While such a case of labor trafficking may seem like an aberration, such crimes are said to occur regularly in the diplomatic community. It is estimated that upwards of one-third of all cases related to forced domestic labor involve diplomats. In its most recent report, the U.S. Government Accountability Office (GAO) identified 42 alleged cases of foreign diplomats abusing their domestic workers between 2000 and 2008. However, the report noted that the actual number was “likely higher,” as few victims come forward.
While foreign service officers are afforded significant protections, they are not free to disregard both domestic and international
Vol. 39 Associate Editor
On June 1, 2017, President Trump announced with great fanfare that he would unilaterally, as is arguably his right, withdraw the United States from the Paris Climate Agreement. This landmark agreement calls upon its signatory nations to aggressively strive to fight climate change through cooperative efforts. More specifically, it provides a “robust transparency framework,” incentivizes innovation and sharing of effective practices, and implements a work program on a wide slate of issues, all aimed at the ultimate goal of capping global temperature rise this century to 1.5 degrees Celsius above pre-industrial levels. Any realistic efforts to achieve this lofty goal would inevitably require that greenhouse gas emissions be sharply reduced. This achievement would likely entail the phasing out of extensive coal, oil, and gas usage to meet energy demand, the transforming of food production systems (and perhaps even dietary habits!) to slash methane emissions from cattle, and a serious commitment to reforestation efforts.
When the Agreement attained sufficient ratification among members to the United Nations Framework Convention on Climate Change (UNFCCC) and entered into effect on November 4, 2016, it was generally received in the international community as a necessary and meaningful step in the fight against
Vol. 39 Associate Editor
A few months after U.S. President Donald Trump announced the United States’ future withdrawal from the Paris Agreement, small Pacific island nations called for the implementation of the Paris Agreement in the United Nations General Assembly that took place on September 23, 2017.
The Paris Agreement, which entered into force on November 4, 2016, was ratified to globally address various threats posed by climate change by 1) “keeping a global temperature rise this century well below 2 degrees Celsius above pre-industrial levels,” 2) pursuing “efforts to limit the temperature increase even further to 1.5 degrees Celsius,” and 3) helping various countries better adapt to and combat effects of climate change. Efficiently combating threats and effects of climate change requires constant development of technology, provision of adequate financial flows, and all Parties’ continuous efforts to address climate change by “report[ing] regularly on their emissions and on their implementation efforts.” Industrialized nations’ cooperation is tremendously important, considering that industrialized nations tend to be the biggest polluters with greater wealth compared to small island nations that have emitted “less than 1 percent of human-produced greenhouse gases.” Yet small island nations are most threatened by climate change—many are extremely vulnerable to
Vol. 39 Associate Editor
If Carles Puigdemont, President of the Generalitat de Catalunya, gets his way, Barcelona will no longer be part of Spain. While the kingdom created by the union of King Ferdinand and Queen Isabella in the 15th century included Catalunya, there has existed a lingering sense of separateness, visible both through the retention of autonomous political institutions and the use of the Catalan language. Catalan nationalists, in fact, point to a different historical moment as the genesis of the country: the conquest by the army of Philip V of Barcelona during the War of the Spanish Succession was, in their eyes, the moment Catalunya lost its independence.
The rule of Francisco Franco from the end of the Spanish Civil War to the late 1970s stifled both the autonomy and language of the region, but following his death and the reemergence of Spanish democracy, Catalunya secured political autonomy in the form of its own parliament and executive, the Generalitat. The most recent flashpoint in this conflict is the economic crisis, with some Catalans contending their taxes keep the rest of Spain “afloat.” Madrid maintains that unilateral secession would be counter to both the Spanish Constitution and international law, and has
Vol. 39 Associate Editor
Gender equality is not only a general goal of the EU, but is explicitly written into the founding treaty, which requires member states to promote equality between women and men. Not only does this mandate apply to current member states, but it is also a requirement for potential member states, which “must implement EU rules and regulations in all areas” in order to be considered for membership. This requirement incentivizes these states to take initiative in order to gain a coveted spot within the EU, rather than relying on centralized rules. As a result, specific legislation often occurs at the state level, although the European Parliament has passed several resolutions ranging from combating violence against women to reducing the wage gap, and the European Economic and Social Committee and the European Institute for Gender Equality have also made statements on these issues.
The treaty provisions were originally based on the concept of equal pay for equal work, but the goals of the EU have expanded well beyond this concept. The Strategic Committee for Gender Equality sets the framework for the European Commission’s future work toward equality. This committee has set forth five major goals, which are:
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