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.
Daniel Mooney, Vol. 37 Associate Editor
Over the past few years the Chinese government has rapidly undertaken widespread land reclamation and construction in the Spratly Islands in the South China Sea. In general, the island building consists of converting formerly submerged reefs into artificial islands and increasing their size in order to suit specific needs. Once built, the islands are then converted into civilian or military outposts such as ports or airstrips. [i] China is one of many countries that have engaged in island building in the Spratly Islands, however the scope and speed of Chinese activities is largely unprecedented.[ii]
Island building has been a point of contention between China, the United States, and other nations with territorial claims in the South China Sea. Despite China’s foreign ministers’ claims that the nation has stopped land-reclamation efforts in the disputed South China Sea in an attempt to smooth tensions with its territorial rivals, the U.S. remains skeptical. [iii] It has slowly morphed into a major geopolitical problem that has been discussed in depth by Chinese and U.S. officials.[iv]
A major point of contention is how the new islands are to be classified. If the islands are classified as either a low tide elevation or
Amy Albanese, Vol. 37 Associate Editor
For the first time in the history of the International Criminal Court at The Hague, an individual will be tried as a war criminal for the destruction of cultural property. Ahmad Al Faqi Al Mahdi, a native of Mali from the Ansar Taureg tribe, came before Judge Cuno Tarfusser on September 30, 2015, charged with the destruction of the UNESCO site of Timbuktu, Mali. Judge Tarfusser set the provisional date for the confirmation of the charges for January 18, 2016.
It is alleged that Mr. Mahdi, as the head of the Hesbah (a kind of morality squad) of the radical Islamic group Ansar Dine, was directly involved in the destruction of nine mausoleums and the Sidi Yahia mosque in Timbuktu over a ten day period in 2012. The mausoleums and mosque were destroyed as “totems of idolatry” during the Ansar Dine occupation of Mali. Mahdi is alleged to have been part of the associated Islamic Court of Timbuktu and would have been instrumental in executing its decisions, leading to the destruction of these sites.
Mr. Mahdi is charged under the Rome Statute, the founding document of the International Criminal Court. Specifically, the prosecutor, Fatou Bensouda, is charging
Angela Ni, Vol. 37 Associate Editor
Since the end of World War II, Japan has been locked in an internal ideological struggle between normalization of its military capabilities and holding true to its Constitutional promises of refraining from the threat or use of force. In the past, post-War pacifism and geopolitical pressures from other East Asian countries, China in particular, have usually forestalled efforts by the ruling Liberal Democratic Party (“LDP”) to expand Japan’s military endeavors through Constitutional revisions of its Article 9, which expressly prohibits war and denounces the maintenance of land, sea, and air forces for the purpose of waging war. However, regional security concerns stemming from China and North Korea, in addition to recent political efforts from Prime Minister Shinzo Abe, have pushed this long-standing issue to the forefront as Japan’s Parliament, the Diet, voted in favor of new security bills which will expand the Japan Self-Defense Force’s (“SDF”) defensive capacities as well as its role in international peace keeping.
Historically, the LDP have justified Japan’s military under the reasoning that, according to the Treaty of Mutual Cooperation and Security between the United States and Japan, Japan has an “inherent right to self-defense” in addition to its obligation to
Christina Foster, Vol. 37 Associate Editor
Volkswagen, the largest automaker in the world, made headlines last month after it admitted to installing defeat devices in its diesel engines to evade emissions standards. The initial discoveries came from the United States, but the company later admitted that approximately 11 million Volkswagen cars worldwide contain the device. According to the German Transport Minister, Alexander Dobrindt, Volkswagen manipulated emissions tests in Europe as well. Credit Suisse estimates that the scandal could cost the company up to 78 billion euros. This has already had huge implications for shareholders across the globe as shares have dropped over 35%, and the fallout is likely to continue. According to Volkswagen’s Chairman, Hans Dieter Poetsch, the scandal has become “an existence-threatening crisis for the company.” This raises the question of how far the world should push to hold Volkswagen accountable.
While the company is clearly in the wrong, the end of Volkswagen would mean the end of hundreds of thousands of jobs. What is the proper balance between vindicating those who have been wronged and preserving this massive company that is the source of many people’s livelihood? And who should bring these claims?
Consumers, shareholders, and national governments across the globe
Steven R. Ratner
After Atrocity: Optimizing UN Action Toward Accountability for Human Rights Abuses
Uncertainty, Precaution, and Adaptive Management in Wildlife Trade
Dialogic Labor Regulation in the Global Supply Chain
Laurie R. Blank & Benjamin R. Farley
Identifying The Start of Conflict: Conflict Recognition, Operational Realities and Accountability in the Post-9/11 World
Download Volume 36:3 at the Repository
Jennifer P. Nelson, Vol. 37 Associate Editor
In regaining its independence in 1991, Estonia embarked on a political and legal restoration of its national identity in the wake of the Soviet Union’s collapse. Focused on turning back the clock to a more pristine pre-WWII Estonian Republic, the legislature thus decided on November 6, 1991 that citizenship of the newly independent State would be extended only to those who were citizens of the pre-war Estonia and to their descendants. By 1992, the country’s Citizenship Act from 1938 had been re-enacted to actively exclude Soviet-era settlers while simultaneously granting automatic citizenship to those who were Estonian citizens prior to the Soviet takeover in 1940 and their descendants. As a result, a large portion of Estonia’s population suddenly transitioned from holding Estonian citizenship to being “individuals with undetermined citizenship”. While such a label is widely used in Estonian political discourse to refer to the mostly ethnic Russians and other Russian-speaking minorities who lost their official citizenship overnight, “individuals with undetermined citizenship” is not legally defined. Instead, the law and the global community recognize these individuals as stateless persons as defined by the 1954 Convention relating to the Status of Stateless Persons (“1954 Convention”) and
Zachary Anderson, Vol. 37 Associate Editor
The recent Syrian refugee crisis has put a massive amount of strain on Europe. An estimated 32,000 asylum applications were recorded in Europe in July of this year alone. In the wake of this crisis, arguably cruel responses by European governments and individuals have garnered the international spotlight, exposing serious shortcomings in the ability of international law to protect the rights of migrants. For example, Hungary has closed its border with Serbia, built a fence, and launched an anti-immigration campaign. Hungarian officials have also been recorded shooting migrants with water cannons and throwing tear gas over the newly constructed fence into crowds of refugees.
The Universal Declaration of Human Rights states, “Everyone has the right to seek and enjoy in other countries asylum from prosecution.” International law seems to clearly condemn Hungary’s actions, and similar actions taken by other countries. The United Nations High Commissioner for Refugees (“UNHCR") Executive Committee agreed to a set of internationally recognized basic standards of treatment in refugee emergencies. Among these standards are ensuring that borders remain open, adherence to standards of treatment consistent with universal human rights, and non-discrimination based on religion or race. Needless to say, several European countries
Katherine McGuigan, Vol. 37 Associate Editor
On September 18, 2015, the world discovered that Volkswagen had been cheating on its emission tests for its diesel-fueled cars. Volkswagen admitted that over 11 million cars worldwide might contain “defeat devices” which can “make cars appear cleaner than they are during regulatory tests and disable emissions controls during normal driving conditions.” Since that disclosure, VW has lost more than $34 billion of its company value. Many countries have halted the sale of its cars. Volkswagen now faces a tidal wave of lawsuits from disgruntled car owners and could be fined up to $18 billion by the U.S. Environmental Protection Agency.
Volkswagen’s reach is global in the broadest sense of the word. Not only does it ship its cars all over the world, but Volkswagen AG owns subsidiaries in various countries including: Germany, which houses Volkswagen, MAN, Audi and Porsche, Skoda in the Czech Republic, SEAT in Spain, Bentley in the U.K., Bugatti in France, Lamborghini and Ducati in Italy, and Scania in Sweden. Given its global reach, one of the most complicated features of the impending deluge of cases is going to be dealing with international e-discovery, particularly in cases between the United States and
Christopher Balch, Vol. 37 Associate Editor
Along the shores of the Danube and wedged between Croatia and Serbia there exists a small tract of territory unclaimed by either nation. Enter Vit Jedlicka and his proclamation of the nation of Liberland complete with a constitution, a flag, and a motto, which is appropriately “to live and let live.”
This bizarre episode begins with a 20th century engineering project to straighten the winding Danube in order to accommodate large boat transit through the river. Such straightening, however, has caused confusion as to the appropriate border between Croatia and Serbia as the Danube has been the customarily recognized boundary between the two nations since the 19th century when the area was under Austro-Hungarian control.
Serbia is happy to recognize the straightened Danube as the new boundary as it receives an increase in overall territory. Croatia feels that is has gotten the short end of the bargain and refuses to claim the area now claimed by Liberland because this would validate Serbia’s claim to the territory on the other side of the river.
To date, no State has yet recognized Liberland’s existence, but this may not be of consequence. According to Article 3 of the Montevideo Convention, the
Erin Collins, Vol. 37 Associate Editor
Over the past few months we have seen the dramatic increase in Syrian crisis, culminating most recently with a Russian airstrike campaign in Syria. Under the United Nations charter Article 2(4) there is a general prohibition on the use of force.  There is a specific exception carved out for self defense in the UN Charter in Article 51 guaranteeing States the “right to individual or collective self-defense if an armed attack occur” as well as a more controversial possible exception of humanitarian intervention.
President Vladimir Putin argues that his action is specifically lawful under the argument of collective self-defense and states that because Syrian President Bashar al-Assad requested the action, Russia was not intervening but rather supporting Assad. There is some historical support of government interventions that could be used to support Putin’s statements. For example, during the Cold War President Reagan justified U.S. military support in Nicaragua as an act of collective self defense requested by El Salvador.
This is likely to be as unpersuasive as the U.S. claim. While Russia is not providing what it considers to be “direct military support” and argues that the “air campaign [will] not be open-ended” it is unclear
Jacob Greenberg, Vol. 37 Associate Editor
When the United Kingdom’s Labour Party elected Jeremy Corbyn, one of the furthest left-wing Members of Parliament, as its leader, reverberations were felt around the world. At home, pundits questioned whether a man who appeared regularly on Iranian and Russian propaganda channels should be briefed on top secret national security matters, as his predecessors had. Scottish commenters wondered whether a reenergized Labour base in Scotland would assist or cripple the movement for Scottish independence. Perhaps the most surprising reaction, if only for its unbridled enthusiasm, came from Argentine President Christina Kirchner. “Hope has triumphed,” she stated, his victory was “a triumph for all those who work for peace and conflict resolution.”
Kirchner’s overwhelming support stems from one of Corbyn’s many unique policy positions: his call for joint UK and Argentine administration of the Falkland Islands (or Malvinas, as they are called in Argentina). England first established a settlement on the Falkland Islands in 1690, and claimed them in 1765. It withdrew its settlement in 1774, but never revoked its claim. Argentina inherited its claim from Spain, and it established its first settlement in 1820. In 1833, Britain, acting on its claim, forcibly evicted the Argentine military.
Yekaterina Reyzis, Vol. 37 Associate Editor
The United Nations’ (“UN”) intervention in the Sri Lankan civil war spawned an international inquiry into the efficacy and legitimacy of UN forces and raised broader concerns about UN involvement in internal state conflicts generally. The aftermath of the conflict illustrates that during more than a quarter century of violence between the Sri Lankan government and secessionist militants, Liberation Tigers of Tamil Eelam (“Tamil Tigers”), the UN could have been more proactive, efficient, and responsible in its mission to monitor and report the violence on the ground, which slayed at least 100,000 people. Namely, in the lead up to the end of the war, the UN failed to address multiple red flags presented by the Sri Lankan government, which consequently wiped out an estimated 40,000 civilians in the last five months of the conflict alone. Last week, however, the UN’s call for an international war crimes court appeared to be its first constructive step in ensuring that the post-war Sri Lankan government takes the appropriate steps to achieve accountability and prolonged reconciliation within its borders.
In June 2010, in the wake of the civil war, a panel of experts organized by the UN Secretary General
Joon Yoo, Vol. 37 Associate Editor
This past summer, a hearing was held at the International Centre for Settlement of Investment Disputes (ICSID) in Washington, D.C. concerning an international arbitration between the South Korean government (hereinafter “the Government”) and Lone Star Funds (hereinafter “LSF”), a U.S.-based private equity fund that filed this arbitration claim at the ICSID to seek reimbursement of $4.68 billion from the South Korean government.[i] The stakes are enormous, and not only because of the amount of money in controversy. ICSID’s decision cannot be appealed as in ordinary lawsuits and if South Korea loses this dispute many more similar suits by foreign business entities could follow.[ii] The dispute involves two major issues: (1) whether or not the Government unduly delayed the sale of LSF’s controlling interest in Korea Exchange Bank (KEB), especially by refusing to approve the KEB’s sale to HSBC in 2007; and (2) whether or not the Government’s taxation of the profit from KEB’s sale in 2012 was in violation of the bilateral investment treaty between South Korea and Belgium-Luxembourg.[iii] Most importantly, the outcome as to the second issue will turn on how to interpret the bilateral investment treaty that does not expressly mention the tax
Chris Sungwon Lee, Vol. 37 Associate Editor
[Ed. note: Compare Eddie Mears' article of March 2015.]
Bitcoin’s value has surged over the years as people are turning to Bitcoin as an alternative form of currency. Despite their increasing use, Bitcoin has reigned largely free of regulations. Regulators have been slow to respond partly because of their unpreparedness in tackling Bitcoin’s distinct features. But as Bitcoin’s risks grow with its importance, regulators are at a critical juncture of having to scurry to create a regulatory framework.
Federal Judge Decrees Bitcoin a Commodity
Because of Bitcoin’s unique features, one can view Bitcoin as a commodity, asset class, or security. Effective regulation is possible with any of these classifications. For instance, the Securities and Exchange Commission (SEC) may favor considering Bitcoin as securities since that would grant SEC power to charge bitcoin uses in illegal purposes such as fraud, money laundering and commerce in narcotics. IRS rules have already established Bitcoin as property, not currency.
On September 17th 2015, the Commodity Future Trading Commission followed suit by declaring Bitcoin as a commodity covered by Commodity Exchange Act (CEA). Although this result was expected, this is the first time the CFTC has officially declared its position. The CFTC stated
William Quinn, Vol. 37 Associate Editor
The Geneva Conventions of 1949 are universally recognized as the core body of international law regulating the conduct of armed conflict. Nevertheless, it seems trite to remark that they have not been universally obeyed. That lack of obedience has not gone unnoticed, as political leaders, lawyers, activists, and journalists throughout the world have worked tirelessly to expose war criminals and bring them to justice. Though the Geneva Conventions failed to usher in an era of peace – or even an era of conflict lacking in wanton barbarity – they have provided an effective standard by which to judge the actions of combatants.
Commitment to the use of that standard is now eroding. Since September 11, 2001, some provisions of the Geneva Conventions have been viewed as outdated and inapplicable to the modern national security environment. Common Article 3 of the Geneva Conventions provides assurances for the humane treatment of captured prisoners of war. Because members of terrorist and insurgent organizations ignore the Geneva Conventions, and because they do not fit clearly into any of the categories afforded protection by the Geneva Conventions, countries such as the United States, the United Kingdom, and Israel have balked at
Jason S. Levin, Vol. 37 Associate Editor
August 2015 marked the release of India’s Twentieth Law Commission report, wherein Indian officials proposed sweeping changes to the country’s policy toward bribery. India, the second most populous nation and the largest democracy in the world, is no stranger to the drawbacks of a society rife with corruption. As S. K. Ghosh, Former Inspector General of Odisha Police, noted in his seminal work in 1971, “[c]orruption is tracking blood on [India’s] sacred heritage, impeding the progress of [India’s] society, and jeopardizing [India’s] hope for the future.”
The proposition of India’s anti-bribery bill is not their first iteration, as it is the culmination of a previous bill proposed in 2011 and vast research on anti-bribery laws throughout myriad nations. Currently, India, unlike the United States, lacks a domestic law that criminalizes the aforementioned acts. However, as a signatory to the United Nations Convention Against Corruption, 2003 (“UNCAC”), India is required to “enact a law that penali[z]es bribery of foreign officials as well as officials of public international organizations.” Consonant with the three-pronged mission of the UNCAC, it appears that India is now, perhaps more than ever, with Narendra Modi at the helm, ready to commit to
David Angel, Vol. 36 Associate Editor
This year has brought fresh examples of how the balance of the world’s economic power is shifting, promising to realign the relationships between major powers and their allies. A recent example of this is Australia’s decision to join the China-led Asian Infrastructure Investment Bank (AIIB) over the objection of US officials. Earlier this year, close American allies including the United Kingdom, France, Germany, Italy, and South Korea also decided to become AIIB founding members. One motivation for the creation of the AIIB is to plug a large infrastructure funding gap in Asia, providing much-needed capital for projects like roads and bridges. Other development banks, including the World Bank and the Asia Development Bank, simply do not have sufficient funds to adequately finance infrastructure projects in the region.
But a desire to provide much-needed financing to the region only partially explains China’s motivation. The creation of the AIIB also reflects Chinese dissatisfaction with the post-war system of international economic governance. Following World War II, the global community recognized the need for international institutions that could more effectively deal with the kinds of economic problems that helped precipitate the war. One of these institutions, the International Monetary Fund
Zhouyuan Diana Duan
Vol. 37 Executive Editor
Vol. 36 Associate Editor
The question of whether a foreign arbitral institution can administer an arbitration seated in Mainland China has been discussed for many decades and still remains unresolved till this day. Until 2009, two leading cases established two different perspectives on this issue. In 2006, the Supreme People’s Court in Züblin International GmbH v. Wuxi Woke General Engineering Rubber Co., Ltd. (“Züblin”) ruled that the award rendered by an ICC tribunal seated in Shanghai was invalid. In contrast, in Duferco S.A. v. Ningbo Arts & Crafts Import and Export Co., Ltd. (2009) (“Duferco”), the Ningbo Intermediate People’s Court of Zhejiang Province upheld an award rendered by an ICC tribunal seated in Beijing.
At first, it may seem that the Züblin case and the Duferco case contradict each other. A closer look at the holdings, however, reveal that neither courts truly addressed the issue of whether a foreign arbitral institution can administer an arbitration seated in the Mainland. The Züblin court did not recognize the ICC award because the arbitration clause “failed to expressly designate an arbitral institution," as required under Chinese law. Likewise, the Duferco court recognized the award because the party had “failed to object
THE MICHIGAN GUIDELINES ON RISK
FOR REASONS OF POLITICAL OPINION
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 sustained collaborative study and reflection on relevant norms and state practice. Our research was debated and refined at the Seventh Colloquium on Challenges
THE MICHIGAN GUIDELINES ON RISK
FOR REASONS OF POLITICAL OPINIONThe Michigan Guidelines on Risk for Reasons of Political Opinion represent the end product of sustained research that culminated in the Seventh Colloquium on Challenges in International Refugee Law.The Colloquium was convened in March 2015 by Michigan Law's Program in Refugee and Asylum Law, and chaired by Professor James C. Hathaway. The Michigan Guidelines reflect the consensus of Colloquium participants on when a person faces a risk of being persecuted "for reasons of political opinion" in a manner that ensures both fidelity to international law and the continuing vitality of the 1951 Refugee Convention.The Michigan Guidelines will be first published here on MJIL's website on July 24th, 2015. Follow MJIL on Facebook and Twitter, MLaw on Facebook and Twitter, and Professor Hathaway on Twitter for more information.
Nancy Amoury Combs
"From Presecutorial To Reparatory: A Valuable Post-Conflict Change Of Focus"
Richard Ashby Wilson
"Inciting Genocide With Words"
"The Incitement Of Terrorism On The Internet: Legal Standards, Enforcement, And The Role Of The European Union"
"Can The EU Be A Constitutional System Without Universal Access To Judicial Review?"
Download Volume 36:2 at the Repository
J. Clifton Fleming, Jr., Robert J. Peroni & Stephen E. Shay
"Formulary Apportionment in the US International Tax System: Putting Lipstick on a Pig?"
Matthew C. Turk
"Reframing International Financial Regulation After the Global Financial Crisis: Rational States and Interdependence, Not Regulatory Networks and Soft Law"
Vassilis P. Tzevelekos
"Reconstructing the Effective Control Criterion in Extraterritorial Human Rights Breaches: Direct Attribution of Wrongfulness, Due Diligence, and Concurrent Responsibility"
"The International Human Rights Regime and Supranational Regional Organizations: The Challenge of the EU"
Download Volume 36:1 at the Repository
Amy K. Bergstraesser, Vol. 36 Associate Editor
The experience of large economic shifts often sparks the need for more than some governments can or are willing to deal with. Social welfare systems deteriorate and the gap between the rich and the poor grows, causing concern and strife. Recently, businesses have been called on to pick up the pieces. Eastern Michigan, on the brink of recovery from a huge economic downturn, has looked to smaller-scale grassroots ways of revitalizing the economy. By encouraging social entrepreneurs and their businesses to not only launch in “Pure Michigan,” but also to contribute to local social issues, Michiganders hope to slowly rejuvenate the struggling eastern half of the state. On the other side of the globe, China has struggled with many of the same social problems, including high levels of poverty, after the country began shifting from a state-run economic system to a private system aimed at economic growth.[i] To address these problems, China has taken social entrepreneurship to a new level, mandating corporate social responsibility. The following is a comparative piece about how Michigan and China, both dealing with their own unique economic crises, have encouraged and even mandated social responsibility.
Social Entrepreneurship in Eastern Michigan
Divya Taneja, Vol. 37 Business and Development Editor,
Vol. 36 Associate Editor
Last month, Human Rights Watch released a report on labor violations in Cambodia’s garment industry.[i] The 140-page report details discriminatory and exploitative labor conditions that occur in the factories of many brands that are well known across the globe, including Gap, Marks & Spencer, and Adidas.[ii] The controversy surrounding these labor rights violations have drawn attention to ill-treatment that is specific to women, including pregnancy discrimination, in part because roughly 90% of Cambodia’s seamstresses are women.[iii] Cambodia is responsible, as are all countries, for complying with international human rights law, including labor rights. Cambodia is a member state to the International Labour Organization’s (ILO) treaty,[iv] meaning it has assented to comply with the ILO’s standards. Cambodia is party to several international legal conventions governing the rights of women in the workplace and other worker rights: the Convention on Elimination of All Forms of Discrimination against Women (CEDAW) and its Optional Protocol,[v] the Convention on the Rights of the Child (CRC) and its Optional Protocol,[vi] the International Covenant on Economic, Social and Cultural Rights (ICESCR),[vii] and the International Covenant on Civil and Political Rights (ICCPR).[viii] The country has also ratified 13
Luca Winer, Vol. 37 Editor-in-Chief, Vol. 36 Associate Editor
Violence against women and children is endemic in many conflict zones. Sexual violence is particularly likely to be used a weapon of intimidation and subjugation.[i] The international community has acknowledged this unfortunate truth, and discussed, written and signed many multilateral treaties that attempt to address this type of violation. Since the 1940s, customary international law has recognized that even in wartime, civilians have legal rights and protections.[ii] The Fourth Geneva Convention of 1949 stated that civilians must be cared for in detention and must not be subject to torture; "violence to their life or person;" be taken hostage; subject to "outrages upon personal dignity;" or subject to rape.[iii]
Violence against women was specifically addressed as an international human rights issue in The Convention on the Elimination of All Forms of Discrimination against Women ("CEDAW"). [iv] This convention, adopted in 1979, became the foundational international human rights treaty concerned with eliminating violence against women and championing women’s rights.[v] Its overarching goal is “to eliminate all forms of discrimination against women with a view to achieving women's de jure and de facto equality with men in the enjoyment of their human rights and fundamental freedoms.”[vi] CEDAW binds signatories to