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.
Christina Foster, Vol. 37 Associate Editor
North Korea, the self-declared nuclear state, claims to have successfully tested a hydrogen bomb. The testing occurred at 10:00am local time on January 5, 2016 and is one of several experiments carried out by leader Kim Jong-Un and the late Kim Jong-Ilin what is becoming a routine violation of international law. Last May, U.S. Secretary of State John Kerry accused North Korea of “flagrant disregard for international law,” and the country is clearly showing no signs of letting up. While the United Nations Security Council has adopted several resolutions which impose sanctions on North Korea, these resolutions are merely soft laws that lack teeth. Even more problematic are the conflicting international policies and wavering stances of powerful nations, such as China and the United States. To achieve the objectives of the resolutions that target North Korea’s nuclear program, the leading countries of the world need to effect stricter sanctions and follow through as a united front.
While North Korea’s nuclear proliferation is just one of many international concerns that the United States and its allies currently face, in Pyongyang, developing a nuclear program has long been at the forefront of the government’s ambitions. To North Korea,
The Michigan Journal of International Law would like to announce the Volume 38 Editorial Board:
Volume 38 Editorial Board
Editor in Chief
Business and Development Editor
Managing Article Editor
Managing Executive Editor
Managing Note Editor
Managing Online Content Editor
Online Content Editors
Sung "Chris" Lee
Congratulations to the new board!
Vol. 37 Associate Editor
Vol. 38 Managing Online Content Editor
For over a year, there have been reports in the international press of Syrian and Iraqi antiquities being sold by ISIS as a source of revenue. The reports detail how ISIS is profiting through the sale of Syria’s antiquities on the international art market, some even going so far as to call it a major source of funding. The most recent set of complete trade statistics shows that, in fact, the importation of Syrian antiquities into the United States has remained similar to the pre-2012 sanctions. This is a stark contrast from all other Syrian goods, which have sharply declined from $429.3 million worth of declared goods, to just $12.4 million in declared goods. Yet, in 2014, the importation of “Antiquities over 100 years old,” “Worked Monumental Stone and Mosaic Cubes” and “Collector’s Pieces of Archaeological, Historical or Numismatic Objects” represented $6,633,903, or 54%, of all U.S. imports from Syria.
There is disagreement as to the extent to which ISIS profits from the sale of antiquities. One of the highest estimates comes from the former Indian ambassador to Syria, who stated that ISIS derives anywhere between thirty and fifty percent of its
Silvia Raithel, Vol. 37 Associate Editor
Negotiations towards the Common European Asylum System (“CEAS”) began in 1999 in the city of Tampere, Finland. EU Member States wanted a unified asylum system, based on binding legislation, in order to address several key problems. One problem the CEAS sought to address was asylum shopping. This is a practice whereby asylum seekers whose applications for asylum in one EU Member State are denied apply for asylum in another EU Member States. A second problem the CEAS sought to address was disparate asylum outcomes in different EU Member States. This led asylum seekers to gravitate towards EU Member States where their application was more likely to be approved. A third problem the CEAS sought to address was differing social benefits for asylum seekers in different EU Member States. This led asylum seekers to file their petitions for asylum in the EU Member States that had the best social benefits for asylum seekers.
The adoption of the CEAS took place in two phases. During the first phase, between 1999 and 2005, “several legislative measures [harmonizing] common minimum standards for asylum were adopted.” These minimum standards included five key components: (1) the Asylum Procedures Directive, (2) the Reception
Erin Collins, Vol. 37 Associate Editor
Throughout law school, much of our coursework focuses on the black letter law. However, it is equally important to keep in mind the way that particular laws can have a disparate impact on individuals, and when various laws can be used in order to prohibit individuals really achieving some sort of access to justice. To demonstrate this point, this short article will look at potential obstacles to access to justice regarding gender-based violence for women in Tunisia.
Tunisia is through to have some of the most progressive women’s rights legislation throughout the Middle East/North Africa region. The Personal Status Code was promulgated in 1956 under Tunisia’s first president Habib Bourguiba. While there have been several revisions to this code, it functioned to abolish polygamy and repudiation; establish a legal right for women to ask for divorce; create a minimum age for marriage; and require consent of both spouses to marriage. The next year, Tunisian women were granted suffrage, and by 1959 they received the right to run for public office.
Tunisia’s 2014 Constitution further codified women’s status in society. Article 21 contains a general provision recognizing equal rights and duties for men and women as well as
Katrien Wilmots, Vol. 37 Associate Editor
The chances of the United Kingdom leaving the European Union seemed remote only a couple of months ago. However, recent surveys of the British public and talk in parliament have made the idea of a “Brexit” not just mere talk but an actual possibility. The British Prime Minister, David Cameron, has been focusing on negotiating a deal with the EU in order to avoid a Brexit, but recent developments do beg the question what the consequences of an exit would be, and more specifically what the international legal consequences would be.
Law firms in London such as Clifford Chance, Freshfields Bruckhaus Deringer, and Hogan Lovells are already preparing for a possible Brexit and have assembled dedicated teams to advise the would be widespread consequences of an exit including “implications for tax, employment, financial regulation, intellectual property and company law.”
As a member of the European Union, the supreme law of the land in Britain is EU law. In a landmark case in 1963, Van Gend en Loos v. Nederlandse Administratie der Belastingen, often described as the European equivalent of Marbury v. Madison, the European Court of Justice (ECJ) ruled that EU treaties are directly effective in their application
Tania Morris Diaz, Vol. 37 Associate Editor
On November 4, 2015, the Mexican Supreme Court (SCJN) concluded by a 4-1 vote that recreational production, possession, and consumption of marijuana is a human right. As a means of understanding the road to marijuana legalization, this article presents a brief overview of Mexico’s evolving drug policy over the past two decades, what the decision means now, and what is needed next in order for Mexico to legalize marijuana.
It was not until the 1980s and early 1990s with the fall of Colombian drug trafficking organizations that Mexico’s role evolved from “mere couriers” to “wholesalers.” The inequality and poverty effects of NAFTA in Mexico strengthened these criminal organizations by providing cartels with a “huge pool” from which to recruit “foot soldiers.” It was at this time that Mexico felt the weight of an inherent imbalance in the supply-demand aspect of international drug trafficking. In 1993, Mexico wrote a letter to the Secretary General voicing a strong desire that international focus shift from production to consumption and a strong critique of U.S. counter-narcotics operations on Mexican territory. This ultimately sparked the first United Nations General Assembly Special Session (UNGASS) on the World Drug Problem in 1998.
Rochelle Dreyfuss and Susy Frankel
From Incentive to Commodity to Asset: How International Law is Reconceptualizing Intellectual Property
Carlo Garbarino and Giulio Allevato
The Global Architecture of Financial Regulatory Taxes
David J. Stute
Privacy Almighty? The CJEU's Judgment in Google Spain SL v. AEPD
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Jason S. Levin, Vol. 37 Associate Editor
The New Year welcomed heightened political tension as legal woes between Ukraine and Russia intensified, two countries with an already tumultuous history. On January 1, Russia responded to Ukraine’s December 31 default on the first tranche of debt, a $3 billion Eurobond, by initiating “procedures [for] . . . legal action.” The action was filed in the London Court of International Arbitration (“LCIA”).
The Ukraine-Russia debt deal, struck in December 2013, provided that Russia would “[purchase] $15 billion worth of Ukrainian Eurobonds.” Ukraine’s Russian debt obligation is part of a larger restructuring effort, as Ukraine recently yielded to “private credito[r]” demands, deciding not to pay back Russia in full. The International Monetary Fund (“IMF”) has classified Ukraine’s debt as sovereign (as opposed to private or commercial), rendering them unable to restructure in opposition to the pool of private creditors.
Ukraine has been working to comply with the conditions of a $17.5 billion IMF bailout. Although Russia is one of the 188 IMF members, the country refused to take part in the private creditor negotiations. Thus, further embroiled in this controversy is the IMF’s role. In an effort to provide ongoing capital to Ukraine, the IMF recently
Cole Lussier, Vol. 37 Associate Editor
In American foreign affairs law, it is long established that the “external powers of the United States are to be exercised without regard to state laws or policies.”[i] Yet this does not mean that governors are required to ignore the effects of an increasingly connected global community and the opportunities it presents. Indeed, to varying degrees of success, savvy governors have attempted to tap into the international marketplace to establishing trade relationships and attract foreign investment to their states.
The role of states in international law is of course not new, and states have been involved in global legal matters in different ways. Of course, much of the discourse on the role of states and governors in international law has focused on formal roles. Whether it be giving effect to the judgments of international tribunals or dealing with the demands of a foreign state, forming bilateral or multilateral agreements with foreign states or their subunits, or enacting their own legislation that runs up against the laws of another country, states have simply been unable to avoid the global legal arena.[ii]
One of the most dynamic ways governors can engage the global community is by facilitating international trade
Katrien Wilmots, Vol. 37 Associate Editor
On Friday November 13, 2015 three teams of coordinated attackers carried out terrorist assaults in Paris. There were three suicide bombings outside the Stade de France, mass shootings, and additional suicide bombings at four other locations. The deadliest attack was at the Bataclan theater where attackers shot and took hostages. 130 people lost their lives.
French President François Hollande's response to the Paris attacks has echoes of President Bush's rhetoric after September 11, 2001. Hollande invoked the language of war to describe what the terrorist attacks meant for France. He called the attacks an “act of war” and instituted a state of emergency. However, implicitly elevating a terrorist organization to the level of a sovereign entity that has the power to declare war complicates the traditional international law notion of warfare. Under international law, the concept of war is confined to conflicts between states. After 9/11, Christopher Greenwood argued that "references to the attacks as ‘acts of war’, like the subsequent talk of a ‘war against terrorism’, are understandable in political terms but are not to be taken as referring to the concept of war in international law." Raising the Islamic State to the level of a
Cody Marden, Vol. 37 Associate Editor
In November 1983 the North Atlantic Treaty Organization (NATO) conducted a ten day military exercise known as Able Archer 83. This exercise was arguably the closest the world has ever come to WWIII. The realistic nature of the exercises, combined with the deteriorating relations with the U.S., led many in the USSR to suspect that Able Archer could be a ruse that was actually obscuring preparations for a U.S. first strike. In response to the exercises the USSR placed their nuclear arsenal on standby and placed air units in East Germany and Poland on alert. Luckily, the situation defused itself with the end of the NATO exercise.
What if the Soviet Union had preemptively attacked the U.S.: would the attack have been legal under international law? The answer is not entirely straightforward. The actions of states that act in anticipatory self-defense are measured by somewhat subjective principles. However, there are instances where military exercises could constitute sufficient provocation to conduct an anticipatory attack under international law.
The international framework for anticipatory self-defense arises from two sources: Article 51 of the U.N. Charter and the Caroline Test of customary international law. Beginning with Article 51, the Charter states
Richard Self, Vol. 37 Associate Editor
“UN Peacekeepers provide security and the political and peacebuilding support to help countries make the difficult, early transition from conflict to peace.”
The stated mission of the United Nations Peacekeeping forces is an admirable one, but in the wake of 2015’s evolving global threats, the principles of the Peacekeeping forces have markedly constrained the mission from becoming one that can achieve the primary goal of the United Nations as enumerated in Article 1(1) of the UN Charter: “to maintain international peace and security, and to that end: to take effective collective measures and removal of threats to the peace”. Perhaps the most crushing of these tenants is the hesitance of the United Nations to increase its intelligence collection capabilities in aid of the peacekeeping process, despite calls (such as those seen in the Brahimi report) for the organization to take on a stronger role in the arena. Due to the nature of the covert scheming of international terrorist threats coming from universal antagonists such as the Islamic State of Iraq and Syria (ISIS) that have the ability to carry out covert attacks without a defined military force on civilians and military actors, it is of
Christian Husby, Vol. 37 Associate Editor
Offensive autonomous weapons. Stephen Hawking, Elon Musk, and Noam Chomsky are opposed, Human Rights Watch is opposed, and 68% of Americans are opposed. So, should we be worried?
Before being able to draw any conclusions, it would be useful to define what autonomous weapon systems (AWS) are. The most commonly cited definition is that articulated by the U.S. Department of Defense. The U.S. Department of Defense defines AWS as: "a weapon system that, once activated, can select and engage targets without further intervention by a human operator. This includes human-supervised autonomous weapon systems that are designed to allow human operators to override operation of the weapon system, but can select and engage targets without further human input after activation." The Center for New American Security’s Ethical Autonomy project defines an autonomous weapons system as a “weapon system that, once activated, is intended to select and engage targets where a human has not decided those specific targets are to be engaged.” Other commentators compile their own definitions. For example, one scholar describes a “fully autonomous system” as one that can decide “on its own what to report and where to go,” that “may be able to learn
Corina McIntyre, Vol. 37 Associate Editor
On October 21, 2015, the European Commission ruled that Luxembourg and the Netherlands granted illegal tax agreements to Fiat Finance and Trade and Starbucks. In essence, the European Commission determined that these tax agreements created anticompetitive effects by granting these multinational corporations unfair tax advantages.
European Union member states are generally allowed to issue these types of tax agreements with corporations. These agreements serve to clarify how that particular country will calculate a company’s corporate tax and whether any special tax provisions will apply. But corporate tax agreements are subject to European Commission investigation and review. In particular, the European Commission seeks to ensure that “national tax authorities [do] not give any company, however large or powerful, an unfair competitive advantage compared to others.”
With respect to the Fiat decision, the European Commission determined that the Luxembourg tax ruling utilized a “complex and artificial methodology” that “cannot be justified by economic reality.” This resulted in Fiat’s payment of taxes based on underestimated profits that allegedly should have been “20 times higher if the calculations had been done at market conditions.” In the Starbucks decision, the European Commission concluded that the company reduced its taxable profits in the
Cite as: James C. Hathaway, The Michigan Guidelines on Risk for Reasons of Political Opinion, 37 Mich. J. Int'l L. 234 (2016), available at http://wp.me/P5WwJW-oV.
THE MICHIGAN GUIDELINES ON RISK
FOR REASONS OF POLITICAL OPINION
English / French
The Convention relating to the Status of Refugees (“Convention”) recognizes as refugees those who, owing to a well-founded fear of being persecuted on the basis of inter alia “political opinion,” are unable or unwilling to avail themselves of the protection of their home country.
State practice acknowledges that protection based on “political opinion” should not be limited to those individuals at risk by reason of their views about partisan politics. Beyond this, the absence of an authoritative definition of “political opinion” in either the Convention or international law more generally has allowed interpretive inconsistencies to emerge, both within and among jurisdictions. Further complicating the search for a consistent approach is a lack of clarity about how best to ensure that the social and political context of the country of origin is meaningfully taken into account in assessing the existence of a “political opinion.”
With a view to promoting a shared understanding of the proper interpretation of “political opinion” within the context of Article 1(A)(2) of the Convention, we have engaged in
Sihang Zhang, Vol. 37 Associate Editor
In recent years, the ease of establishing accounts at foreign financial institutions, combined with financial advisors who routinely establish foreign structures to hide income, create a unique risk of tax evasion for governmental authority, especially in a self-assessed tax system, where taxpayers may choose not to comply with their domestic tax reporting obligations. Indeed, the increasingly globalized and borderless world of finance makes it a lot more “tempting” for wealthy people to hide their money abroad. Against the backdrop of rising public anger about tax avoidance and evasion, the G20 finance ministers endorsed automatic exchange as the new tax transparency standard on April 19, 2013.[i] Two years later, on October 29, 2014, 51 jurisdictions (39 were represented at ministerial level), signed a multilateral competent authority agreement to automatically exchange information based on Article 6 of the Multilateral Convention on Mutual Administrative Assistance in Tax Matters.[ii] More than 65 jurisdictions publicly committed to implementation.
The Common Reporting Standard (CRS) is a big step towards a globally coordinated attempt between governments to disclose and exchange financial information of income earned by individuals and organizations. Countries have a shared interest in exchanging information to combat against tax evasion and
Ashley Harshaw, Vol. 37 Associate Editor
The Supreme Court of Mexico, in a 4 to 1 vote, has declared that four plaintiffs – members of a cannabis club – are allowed to grow, transport and use marijuana for recreational purposes. This marks the latest in a series of shifts in the Americas away from past stringent policies of the War on Drugs. Although the decision does not legalize marijuana across Mexico, basing the decision on human rights grounds provides a powerful precedent for a range of challenges to restrictive drug use laws. This precedent could set into motion significant changes in drug policy not only in Mexico, but also across the region more broadly.
Since the Nixon administration declared the “War on Drugs” in 1971, the U.S. government has pressured Latin American nations to enforce strict prohibition on opium, coca and marijuana crops with aerial spraying and military operations. The Americas have largely continued with this prohibitionist approach into the 21st century. In September 2014, the Global Commission on Drug Policy issued a report sharply criticizing the U.S. led global War on Drugs. The U.S. has spent billions of dollars on punitive drug law enforcement, only to result in violence, excessive incarceration,
Emily Golding, Vol. 37 Associate Editor
In September, news that over 11 million Volkswagen diesel vehicles worldwide had been equipped with software used to defeat emissions tests rocked the international community. In the days following the publication of the scandal, Volkswagen stock dropped nearly 30%. The deception by the world’s top-selling car maker continues to affect not only its shareholders and its customers, but its reach extends to governments, international regulating bodies, and the international motor industry as a whole.
The worldwide impacts of this scandal present important questions of international law. Exactly who holds a stake in the resolution of the scandal? Which governing bodies have the authority to investigate what conduct? Where are claims properly adjudicated? Resolution of the Volkswagen scandal undoubtedly requires international cooperation, and a crucial aspect of proper resolution involves this third issue: deciding which jurisdictions should adjudicate which claims. Where and how claims are resolved has significant financial repercussions all around.
The importance of this third question is highlighted by the recent filing of a class action lawsuit in the U.S. District Court for the Central District of California on behalf of South Korean consumers. The action was commenced on October 23, 2015 by two U.S. law
Silvia Raithel, Vol. 37 Associate Editor
In 1995, the European Parliament and Council passed the Data Protection Directive (Directive 95/46/EC) (the “Directive”). The Directive requires that the transfer of personal data out of the European Economic Area to another country only take place if the other country ensures an adequate level of protection for the data. Adequate protection can be established by virtue of a country’s domestic law or international commitments.
On July 21, 2000, in order to meet the level of data protection required under the Directive, so as to facilitate data transfers from the European Economic Area to the United States, the United States Department of Commerce issued the “Safe Harbor Privacy Principles” (the “Principles”). Organizations could voluntarily and publically adhere to the Principles.
On July 26, 2000, the European Commission (the “Commission”) held in European Commission Decision 2000/520 that the Principles provided adequate protection for personal data. As a result U.S. organizations that voluntarily and publically adhered to the Principles could receive personal data transfers from the European Economic Area.
On October 6, 2015, the Court of Justice of the European Union (the “Court”), in Maximillian Schrems v. Data Protection Commissioner (Case C-362/14) (“Schrems' Case”), held that European Commission Decision 2000/520
Alicia McCaffrey, Vol. 37 Associate Editor
Many in the U.S. remember the controversy that ensued when Mayor Michael Bloomberg attempted to enact a ban on the sale of large containers of soda in New York City. While the national response was rather negative (and in fact a New York state judge later overruled the regulation), the proposed ban would not have been unusual in the international context. Several countries, most of which are European, have enacted similar regulations with varying degrees of success. This article examines whether these kinds of “Fat Taxes” are in accordance with international law.
Rather than ban the sale of unhealthy foods or drinks, the European regulations tend to tax unhealthy foods. For example, in 2011 Denmark enacted a tax that charged 16 kroner per kilogram of saturated fat (imagine that in the U.S. the price of butter rose by 37 cents). However, the tax was repealed the following year because the government considered it ineffective. The government claimed that citizens simply went across the border to buy foods high in saturated fat and that, because the tax was charged to food manufacturers in hopes the businesses would pass the cost along to the consumer, the tax caused
Lauren Richards, Vol. 37 Associate Editor
China’s militarization of islands in the South China Sea threatens the right of innocent passage by States and, therefore, may pose a threat to international law. The U.N. Convention on the Law of the Sea (UNCLOS) establishes a 200-mile continental shelf beyond the coastal State. This entitles the coastal State to an additional 200 miles beyond the border of its territorial sea, which extends 12 miles from the coastal State. In the territorial sea and continental shelf, all States have a right of continuous, expeditious, and innocent passage. China claims a significant portion of the territory of the South China Sea as its own over the protestation of several other States in the region. As a result of recent militarization of man-made islands in the South China Sea, China is potentially threatening the right of passage of these States, and others.
China’s claim to the islands could legally arise under territorial acquisition through prescription, a method similar to adverse possession in U.S. law. China’s occupation and militarization of these man-made islands could effectively give it a right of sovereignty over the islands and, by extension, over the surrounding seas. Politically, this presents issues with surrounding States
Christine Prorok, Vol. 37 Associate Editor
As hundreds of thousands of refugees flee states in the Middle East and Africa, bound largely for countries in the European Union, the international community has struggled to furnish a consistent response to accepting refugees. And some have no intent to accept refugees at all.
While Chancellor Angela Merkel has asserted that the right to asylum has no “upper limit,” and that Germany would welcome all those seeking asylum within the country’s borders, other states have been less willing to extend open arms to refugees. From placing “migrant caps” on the number of refugees permitted to enter a state, to forbidding any from crossing its borders at all, most European countries have expressed hesitancy about accepting refugees and refuse to do so unconditionally. Hungary has erected a barbed-wire fence to keep migrants out and has resorted to using teargas and water cannons to deter migrants from entering the country. The Danish government has placed “advertisements” with the Lebanese press, making clear to migrants that they are not welcome. And several countries have considered adopting a “migrant cap,” meaning a limit on the number of migrants a country is willing to accept within a specified period of
Michael Pucci, Vol. 37 Associate Editor
A little over a year before handing over the keys to the White House to his successor, President Obama finds himself in a peculiar position: he may have to rely primarily on Republican support for one of his last major legislative initiatives. After years of negotiations, the United States and eleven Pacific Rim countries concluded the Trans-Pacific Partnership (“TPP”), a trade agreement that is a “capstone [to Obama’s] economic agenda to expand exports and of his foreign policy ‘rebalance’ toward closer relations with fast-growing eastern Asia.” Now Congress will have its say on that matter. Earlier this summer, the Senate approved fast-track authority for the TPP, ensuring that Congress will have an up-or-down vote free from a Senate filibuster or any amendments.
Notwithstanding this favorable procedural posture, the TPP still faces significant resistance in Congress, particularly over its Investor-State Dispute Settlement (“ISDS”) provision which allows private corporations “the right to bring a claim in international arbitration autonomously . . . against host country governments that allegedly violate those rules” thus allowing corporations the ability to bring “a public international law ‘dispute’ . . . to be settled by an international arbitration tribunal outside the jurisdiction of the host country.” Indeed, “[g]ranting a private party
Virginia Koeppl, Vol. 37 Associate Editor
Fleeing civil war and terror, at least 350,000 migrants have crossed the European Union’s borders in search of a better life from January to August 2015, many of them risking their lives on the perilous journey. Europe is experiencing one of the most significant influxes of migrants and refugees in its history, most of whom come from the Middle East and Africa. The number of refugees has steadily grown over the last two years: According to statistics compiled by the United Nations High Commissioner for Refugees ("UNHCR"), the number of refugees arriving from the Mediterranean Sea has tripled since 2014, bringing it up to a number that is ten times as high as in 2013. 
However, these statistics are not really representative of the true number of refugees that the EU will have to accommodate over the next few years. All the pictures showing the stream of refugees on their way into Europe have one thing in common: The numbers are heavily dominated by young men, and there are barely any women or children in sight. The data complied by UNHCR shows that 69% of the refugees arriving from the Mediterranean are men, mostly below the