MJIL Online brings you timely short-form articles that represent a wide range of views on contemporary issues in international and comparative law. The views and opinions expressed in these articles are those of the authors only.
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
Jeffrey R. Boles
"The Two Faces of Bribery: International Corruption Pathways Meet Conflicting Legislative Regimes"
Sam F. Halabi
"Multipolarity, Intellectual Property, and the Internationalization of Public Health Law"
Dr. Daphné Richemond-Barak
"Can Self-Regulation Work? Lessons From the Private Security and Military Industry"
Seth Mohney (Student Note)
"The Great Power Origins of Human Rights"
Download Volume 35:4 at the Repository
Anonymous, Vol. 36 Associate Editor
Syria’s President Bashar Assad has engaged in a civil war with Syrian citizens since March 2011.[i] As the revolution-turned-bloodbath enters its fifth year, the estimated death toll has reached 220,000 and continues to rise.[ii] The conflict has also displaced a significant percentage of the country’s pre-war population. The United Nations High Commissioner for Refugees estimates that there are 3.8 million Syrian refugees who are now registered in Jordan, Lebanon and Turkey. [iii] Yet, Assad regime forces have only been more aggressive in their indiscriminate shelling of residential areas and their use of internationally prohibited barrel bombs against both civilians and rebel fighters.[iv]
The relevant international forums have failed to hold the perpetrators accountable for their crimes. At the U.N. Security Council, Russia and China have continuously blocked any resolution that would allow investigation of war crimes or hold the Assad regime accountable for any possible war crimes. [v] Specifically, the regime’s allies blocked a referral of Syrian President Assad to the International Criminal Court (ICC) which would seek to hold him accountable for war crimes. [vi]
What the victims need is a neutral forum in which to adjudicate their claims, especially since no claim is available to them
Anjanette H. Raymond & Scott J. Shackelford
Technology, Ethics, and Access to Justice: Should an Alogrithm be Deciding Your Case?
Paper Compliance: How China Implements WTO Decisions
Meredith Kolsky Lewis & Andrew D. Mitchell
Food Miles: Environmental Protection or Veiled Protectionism?
Zackary L. Stillings (Student Note)
Human Rights and the New Reality of Climate Change: Adaptation's Limitations in Achieving Climate Justice
Download Volume 35:3 at the Repository
Derek Turnbull, Vol. 36 Associate Editor
As President Xi Jinping’s burgeoning anti-corruption campaign takes root in China, forcing government officials at the top of diverse ministries from the energy sector to the military to sit up and take notice, China’s anticorruption officials have set their sights on a new area: the United States. Increasingly, China’s state media has critically covered the large number of government officials who have come under investigation in the People’s Republic of China (PRC) and then fled abroad, many to the United States, allegedly in possession of billions of dollars in stolen cash and assets. In February, Chinese and American government officials confirmed that they had recently met to discuss this issue, and announced that in August they will sit down together once more to talk about extradition. While the United States should naturally be at the forefront of any effort to bring corrupt criminals to justice, reasons still exist for caution as American officials move forward in negotiations with their Chinese counterparts. Rather than capitulating to the PRC’s demands for an extradition treaty, the US should settle on a more flexible alternative, such as compliance with already-existing international agreements like the United Nations Convention Against Corruption.
The Law of Diplomatic Asylum—a Contextual Approach
John D. Ciorciari & Anne Heindel
Experiments in International Criminal Justice: Lessons from the Khmer Rouge Tribunal
Eric Talbot Jensen
The Future of the Law of Armed Conflict: Ostriches, Butterflies, and Nanobots
Brenton Kinker (Student Note)
An Evaluation of the Prospects for Successful Implementation of the Convention on the Rights of Persons with Disabilities in the Islamic World
Download Volume 35:2 at the Repository
Elizabeth A. Beitler
Vol. 37 Articles Editor
Vol. 36 Associate Editor
The law of cultural property and its repatriation is becoming a more and more salient topic in the realm of international law for several reasons. First, cultural property encompasses a vast array of objects, including, but not limited to, art, archaeological artifacts, antiquities, and rare manuscripts. Thus, the law of this field has a broad scope that transcends international boundaries. Second, people are becoming increasingly aware of the value of objects subject to this area of law. As a result, many more claims for repatriation have been made in recent years. Furthermore, these claims have a significant impact on relations between interested parties, which are often countries.
The principle vehicle of such repatriation claims is the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, adopted by the General Conference of the United Nations Educational, Scientific and Cultural Organization on November 14, 1970. However, a great deal of debate exists surrounding the success, or lack thereof, of that Convention. Because the 1970 UNESCO Convention is non-self-executing, implementation has become a crucial issue in this debate. By comparing the implementation of the Convention in
Nicholas Charles Ognibene, Vol. 36 Associate Editor
In its brief post-independence history, Sierra Leone has experienced economic stagnation, brutal civil war, and dictatorship. Lately, however, it has been characterized by rapid (if uneven) economic growth and democracy. This growth has recently been checked by the Ebola crisis, which has created substantial suffering and uncertainty.
Complicating this uncertainty has been the recent constitutional crisis surrounding the office of the vice president. Vice President Samuel Sam-Sumana is from Kono District in the Eastern Province of Sierra Leone, known for its diamond production. He was educated in the United States before working in the mining sector in his home city of Koidu,[i] and was selected as the running mate of now-President Ernest Bai Koroma on the All People’s Congress (APC) ticket for Sierra Leone’s 2007 presidential election. The APC was victorious and regained control of the executive branch for the APC. Sam-Sumana’s tenure as vice president has not been not without controversy. In 2011, Al Jazeera published a report documenting undercover video footage of Sam-Sumana and two associates in which they appeared to assure a supposed prospective investor that timber-exporting licenses could be quickly and legally processed with the provision of bribes, despite a ban
Marjorie Mygrants, Vol. 36 Associate Editor
The Vienna Convention for the Protection of the Ozone Layer and the Montreal Protocol on Substances that Deplete the Ozone Layer are perhaps the most successful international treaties the world has seen. In fact, both of the agreements are the most widely ratified treaties in United Nations history. This fact alone has helped lead to much of the treaties’ success, especially since worldwide recognition of a problem and willingness to take specific action to address the problem is a process that is necessary for a significant impact to occur in resolving the issue. Of course, this is the goal of any treaty. But, the reality is that most treaties are lacking in some criteria – enforcement, breadth of state ratification, and/or compliance with terms of the treaty. This article will address the aspects that have made the treaty so successful.
The Vienna Convention provided the general framework for the tools to protect the ozone layer that surrounds the globe. Generally, “The objectives of the Convention were for Parties to promote cooperation by means of systematic observations, research and information exchange on the effects of human activities on the ozone layer and to adopt legislative or administrative
The Michigan Journal of International Law would like to announce the Volume 37 Editorial Board:
Volume 37 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
Congratulations to the new board!
Javier J. Rivera-Alvarado, Vol. 36 Associate Editor
The existence of the right to self-determination in international law is well established, but its precise meaning is still up for debate. It has been defined as the right of all peoples “to determine their future, whether in the form of independence, integration in the administering state or some third state, or free association. Although there is some debate on whether to classify self-determination as a right, a norm, or a principle, it may be understood as a qualified “right,” limited by competing considerations and the complexity in its application. Moreover, context is of special importance to determining its contours.
The peoples of Puerto Rico have invoked the right to self-determination and the United States has recognized this right. However, Puerto Rico’s commonwealth status under the Territorial Clause of the Constitution remains unchanged after four plebiscites. A new bill in Congress proposes a federally sanctioned status plebiscite but it should be modified to include different alternatives to increase the legitimacy of the results and help Puerto Rico put an end to its current status.
Plebiscites Held in the Exercise of Self-determination
Puerto Rico has held four plebiscites since it gained some autonomy in 1952. In 1967, the
Sam Fitzpatrick, Vol. 36 Associate Editor
On January 23, 2013, the Republic of the Philippines initiated binding arbitration in the Permanent Court of Arbitration after exhausting diplomatic and political remedies to resolve its dispute with China over the South China Sea. The Philippine’s memorial requested that the Permanent Court of Arbitration, in accordance with Annex VII of UNCLOS as administered by the International Tribunal of the Law of the Sea (ITLOS), arbitrate a dispute of maritime rights between the Republic of the Philippines and the People’s Republic of China. Specifically, the Philippines requested that the court determine the boundary between China’s historic “nine dash” claim to exclusive control over the islands and water in the South China Sea and the 200 mile exclusive economic zone off the coast of the Philippines. The overlap between these maritime claims has caused considerable and increasing diplomatic tension and confrontations between Philippine and Chinese naval vessels and fishermen over the past 20 years.
Competing Claims to the South China/West Philippine Sea
The Philippines based their request for arbitration on the terms of the United Nations Convention on the Law of the Seas. Both China and the Philippines along with Vietnam, Brunei, Indonesia and Malaysia (all the nations
Vol. 37 Production Editor
Vol. 36 Associate Editor
Chinese regulators hold the keys to a market populated by nearly 1.4 billion people, 400 million of which are expected to be mainstream consumers by 2020. This economic weight grants the power to shape the future of emerging industries. Agricultural Biotechnology (Ag-Biotech) is one such industry dependent on Beijing’s favorable regulatory treatment. Understanding China’s regulatory position vis-a-vis Ag-Biotech is vital to any assessment of this growing industry’s past, present, and future.
Despite continued controversy and public concern, the Ag-Biotech industry has matured significantly since the 1986 release of the first Genetically Modified Organism (GMOs) into the environment. By 2005, imported GMO varieties constituted 40% (27 million tons) of China’s soybean consumption. Bt cotton, a GMO that was designed to reduce the need for pesticides, accounted for 60% of nationwide cotton production in 2005 and 100% of the production in the fertile Yangtze River Valley region. While one would not expect to see these figures coming out of a country that was hostile to the presence of Ag-Biotech, the rigor of the Chinese regulatory structure paints a more complicated picture.
The State Council of the PRC, China’s supreme Executive Branch organ, promulgated the chief law governing Ag-Biotech,
Abigail Zeitlin, Vol. 36 Associate Editor
For many years, there have been large discrepancies between different countries’ tax reporting standards. This has allowed for certain countries, like the United Kingdom or Switzerland,[i] to become tax shelters and for other governments to lose out on millions of dollars in tax revenue. [ii] In the United States alone, it was estimated that the government lost out on $100 billion of tax revenue a year due to tax havens.[iii] This phenomenon led to the enactment of the Foreign Account Tax Compliance Act, or FATCA, in 2010.[iv] One major provision of FATCA requires foreign financial institutions to disclose the names of U.S. citizen account holders and their various transactions, with limited exceptions.[v] If the institution does not report under FATCA, the U.S. will impose a 30% withholding tax on all transactions involving U.S. money and securities.[vi] Although FATCA was enacted in 2010, because of the immense amount of bureaucratic muscle necessary to enforce FATCA, it is set to begin being enforced in 2016.[vii]
Naturally, FATCA has stirred a lot of controversy regarding the extraterritorial reach of the IRS and the ability of the U.S. government to impose steep penalties on foreign institutions. Compliance with FATCA is largely
David Stute, Vol. 36 Associate Editor
Earlier this month, Der Spiegel interviewed French economist Thomas Piketty,[i] who first rose to international fame with his 2013 study of wealth inequality over the past 250 years.[ii] In the interview, Piketty laid his finger on the stark divide in economic outcomes between the United States and the European Union (EU) seven years after the financial crisis.[iii] Two years into the crisis, the two had comparable rates of public debt and unemployment.[iv] But whereas the EU’s rate of unemployment has risen dramatically, that of the United States has dropped to 2008 levels.[v] Moreover, whereas the EU’s economic output remains below 2007 levels, the US economy has regained strength.[vi] And most devastatingly for the EU’s long-term prospects, youth unemployment across the EU was at 21.4 percent as of January, with rates exceeding 40 percent in Italy, Spain, and Greece.[vii] In contrast, US numbers for this demographic have come down from a high of nearly 20 percent in 2010 to below 12 percent in February.[viii]
It is no secret that the United States and the EU pursued different fiscal and monetary policies in response to the financial crisis. Early on, the United States Federal Reserve embarked on unprecedented
Vol. 37 Notes Editor
Vol. 36 Associate Editor
It is a fundamental assumption of the EU project that economic and political freedoms go hand-in-hand,[i] but recent political trends in some EU member states, particularly Hungary, seem to be challenging this consensus. In 2010, Viktor Orbán's Fidesz party enacted reforms in pursuit of “illiberal democracy” to consolidate their grip over elections, governance, and the media, all the while asserting that an illiberal Hungary could exist in harmoniously within the EU.[ii] The Fidesz reforms elicited outrage from both domestic[iii] and international[iv] human rights organizations and spread worry across Europe.
What is the EU to do when a member state engages in systemic violations of fundamental rights protection? The EU treaties provide tools to deal with such situations – namely, infringement procedures and Article 7 procedures. Infringement procedures derive from Article 258 of the Treaty of the Functioning of the European Union (TFEU) as a means of resolving disputes between the European Commission and Member States about the application of EU law within national jurisdictions.[v] Article 7 procedures derive from the Treaty on the European Union (TEU), granting the European Council broad powers to sanction Member States for a “serious and persistent breach” of rights
Stephen H. Packer
Vol. 37 Managing Online Content Editor
Vol. 36 Associate Editor
The UN’s Global Focal Point for Police, Justice, and Corrections (“GFP”) is now two-and-a-half years old. United Nations Secretary-General Ban Ki-moon announced its creation in September 2012, when he appointed the UN Department of Peacekeeping Operations (“DPKO”) and the UN Development Programme (“UNDP”) as the GFP for Police, Justice, and Corrections Areas in the Rule of Law in Post-conflict and other Crisis Situations. As the cumbersome official title suggests, the GFP is an attempt to provide a more joined-up response to crises by various UN bodies, characterized as “delivery as one.” This includes dividing support and responsibility into a two-tier structure, with DPKO and UNDP responsible at HQ level for responding to requests at country level from UN entities working in fields related to police, justice, and corrections (“PJC”). But is the GFP just an example of top-down, supply-driven window dressing in response to failures, or is there genuine bottom-up, demand-driven need for it?
Genesis of the GFP
Conceptually, the reason for appointing DPKO and UNDP was summed-up by Under-Secretary-General for Peacekeeping Operations Hervé Ladsous, when he expressed the hope that the GFP would help make the transition from peacekeeping to development a
Nehal Khorraminejad, Vol. 36 Associate Editor
On January 27, 2015, the State of Georgia executed Warren Lee Hill, a 54-year-old man convicted of murdering another inmate while serving time for killing his girlfriend in 1985. In his appeals, Mr. Hill’s attorneys argued that his mental disability (he had an IQ of 70) exempted him from capital punishment. Nearly thirteen years ago, in Atkins v. Virginia, the Supreme Court of the United States deemed the execution of the mentally disabled unconstitutional under the Eight Amendment. However, the Court left the task of defining the contours of mental disability to state legislatures, allowing states like Georgia to establish overly-fluid definitions of mental retardation, resulting in all-too-common circumvention of the Supreme Court rule. Certain state laws make it difficult for defendants like Mr. Hill to avoid the ultimate form of punishment, despite a strong showing of poor adaptive skills by the defendant. The day after Mr. Hill’s execution, a spokesperson for the European Union (EU) issued a statement expressing disappointment in Georgia’s decision to execute Mr. Hill in light of his condition. In the statement, the spokesperson reiterated that the execution of a mentally disabled person is “contrary to widely accepted human rights norms and
Vol. 37 Articles Editor
Vol. 36 Associate Editor
Global drug regulation dates to the earliest pages in the modern chapter of international law. Long before the Geneva Convention or even the Treaty of Versailles, politicians, medical experts, and religious leaders gathered in Shanghai to address what they called “the opium problem.”[i] 52 years and a half dozen treaties later, the 1961 Single Convention on Narcotic Drugs came into effect, unifying the regulatory threads.[ii] 183 signatories and another 54 years later,[iii] the Convention remains the primary narcotics treaty in effect today.[iv]
As with any multilateral treaty, the Single Convention has faced its share of dissenting voices.[v] Chief among these are accusations that the Convention impedes access to licit analgesics (pain killers) and promotes ineffective methods of combatting drug abuse.[vi] Some critics even blame the Convention for human rights violations.[vii] With the U.N. Special Session on Drugs approaching in 2016, has the time come for an overhaul? Is the Single Convention indeed past its prime?
Not quite. A close evaluation of the Single Convention at fifty-four reveals a still-effective, surprisingly adaptable system of treaty obligations. The main international drug problems, it appears, stem not from the text of the treaty itself, but from errors of
Vol. 37 Articles Editor
Vol. 36 Associate Editor
The Single Convention on Narcotic Drugs of 1961 (“Single Convention”) requires signatories to prohibit recreational use of cannabis within their territories.[i] The United States ratified the Single Convention in 1967.[ii] Under Article VI of the U.S. Constitution, treaties are “the supreme Law of the Land; and the Judges in every State shall be bound thereby.”[iii] In 1970, the U.S. Congress passed the Controlled Substance Act (“CSA”), which categorizes marijuana as a Schedule I controlled substance, defined as a drug with a high potential for abuse, no recognized medical usage and no safe usage under medical supervision.[iv] The CSA imposes criminal liability for growing, possessing or selling marijuana.[v] Enforcement of the CSA would seemingly place the United States in compliance with its obligations under the Single Convention. Now, however, new laws have legalized marijuana in Colorado, Washington, Oregon, Alaska and the District of Colombia. The President’s decision to abstain from enforcing the CSA in these states (and federal district) calls into question the compliance of the United States with its treaty obligations under the Single Convention.[vi]
Current Status of Single Convention Compliance
The International Narcotics Control Board (“INCB”) and the Commission on Narcotic Drugs of the
Sam Fitzpatrick, Vol. 36 Associate Editor
On March 17, 2011, the United Nations Security Council ("UNSC") adopted Resolution 1973, providing the legal framework for the subsequent NATO led military intervention in Libya. The resolution established a “ban on all flights in the airspace of [Libya] in order to help protect civilians” and authorized member states to “take all necessary measures to enforce compliance with the ban.” NATO forces implementing this resolution, including troops from the United Kingdom, France and the United States, conducted 9,000 strike sorties in Libya over the course of the next six months, resulting in the collapse of the Qaddafi regime.
Resolution 1973 set a new precedent for the UNSC by authorizing military intervention based on the “responsibility to protect.” The doctrine of responsibility to protect (RtoP) places an affirmative burden on the international community to protect civilians, with force if necessary, when individual nations fail to do so. Specifically, responsibility to protect doctrine justifies international military intervention to protect civilians from human rights abuses such as genocide, ethnic cleansing or atrocities. In recent years, the doctrine of responsibility to protect had been steadily gaining traction, particularly among scholars and commentators.
Post-Libya Opposition to the Responsibility to Protect
After Resolution 1973,
Edward Mears, Vol. 36 Associate Editor
[Ed. note: Compare Chris Sungwon Lee's article of October 2015 here.]
On February 4th, 2015, Ross Ulbricht, known online as ‘Dread Pirate Roberts,’ was convicted of seven felonies for his involvement with the Silk Road, a so-called “dark-market” that existed on what is commonly known as the Deep Web – a network of unindexed websites that provide a nearly impenetrable shield of anonymity. On the Silk Road, Ulbricht and others bought and sold millions of dollars worth of illicit drugs financed with a cryptocurrency known as BitCoin. At their core, BitCoin and other cryptocurrencies are early pioneers in the frontier of virtual decentralized currency, which do without the ‘trusted’ middlemen such as banks or credit card companies that most people rely upon for their day-to-day currency transactions. By removing third parties from transactions, these cryptocurrencies provide a level of anonymity that is nearly impossible to find in traditional currency markets.
How BitCoin Works
While the identity of the inventor(s) of BitCoin remain somewhat unclear, the payment system emerged in 2008 and attracted a very niche market of clientele, primarily consisting of users involved in the online sale of illegal goods such as controlled substances. In recent years, BitCoin
Emily Rutkowski, Vol. 36 Associate Editor
The United States’ success stories of shutting down multinational corporations (MNCs) for environmental pollution often results in factories relocating from the West to the developing world. For example, Ciba, a manufacturing plant, secretly polluted the town of Toms River, New Jersey for decades before the case was made public. Once exposed, they simply closed their doors and reopened in China. The legal system’s current framework is insufficient at providing remedies in many of these cases. Alternative dispute resolution ("ADR"), can play an important role in providing solutions to ensure that polluters cannot exploit regulatory arbitrage and relocate to loosely regulated jurisdictions in the developing world where polluters can disproportionately shift the burden of pollution onto the poor and underrepresented. In particular, this can be achieved by incorporating ADR mechanisms through specialized Environmental Courts and Tribunals ("ECTs"). ADR can help close the gaps in the current framework, both by bringing more voices to the table, allowing those voices to be heard, and providing a forum for relief.
Traditional courts, both domestic and international, have proven to be insufficient in dealing with environmental disputes, and particularly environmental disputes involving the relocation of factories to the developing world. Both
Alexandra Plutshack, Vol. 36 Associate Editor
Electricity systems have traditionally always been operated as publically owned monopolies. Over the last few decades several nations have begun liberalizing reforms of the electricity market, opening up markets for both generation and retail. However, given the nature and history of the industry, there is concern that current competition laws may not be capable of breaking up the natural “monopolistic inertia” electric companies enjoy.
This past June, the Japanese Diet enacted legislation aimed at liberalizing the electricity retail market, ending the monopoly of regional power companies.[i] The new laws, in force starting 2016, are just the latest in a three-stage reform of Japan’s electricity market. [ii] While these plans look optimistic, it has yet to be seen whether such reforms will be successful in ending the market power these regional companies have. A major tool for liberalization is the robust enforcement of competition laws, and some question has been raised as to whether the current antimonopoly regime will be adequate.
In Japan, implementation of competition law for the electric power industry is delegated to two agencies: the Fair Trade Commission (FTC) and the Ministry of Economy, Trade and Industry (METI).[iii] The first is the agency responsible for
Vol. 37 Online Content Editor
Vol. 36 Associate Editor
The United Nations Security Council has five permanent members (“P5”): China, the United Kingdom, Russia, France, and the United States. According to the predominant theory, and a recent ICJ advisory opinion, the General Assembly has the power to admit a new state only if the state has received a favorable recommendation from the Security Council.[i] A positive recommendation requires nine affirmative votes, including the concurring vote of each of the five permanent members, which essentially gives each member of the P5 a veto over a petition for statehood.[ii] This veto power has been exercised by China against Taiwan and the U.S. against Palestine. The use of the veto power by the U.S. and China, for reasons other than those found in the Charter, represents an abuse of power that needs to be remedied.
According to the Montevideo Convention criteria for statehood, Taiwan and Palestine arguably both possess all of the qualifications (a permanent population, a defined territory, government, and the capacity to enter into relations with other states).[iii] It is for political reasons that China and the U.S. stand in opposition to these non-states achieving recognition from the U.N. China has a "one-China"