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A Fresh View On The Hard/Soft Law Divide: Implications For International Insolvency Of Enterprise Groups, Irit Mevorach
A Fresh View On The Hard/Soft Law Divide: Implications For International Insolvency Of Enterprise Groups, Irit Mevorach
Michigan Journal of International Law
It is the orthodox belief that treaties and—within the EU—directly applicable regulations represent hard, binding international law, while other international instruments—including model laws—are forms of soft law. In a previous publication(The Future of Cross-Border Insolvency: Overcoming Biases and Closing Gaps), I discussed how the traditional distinction between hard and soft law is less firm, due particularly to economic and behavioural implications of instrument choice and design. Building on that analysis, this Article focuses on the new rules for the international insolvency of enterprise groups in the Recast EU Insolvency Regulation 2015 (the “EIR”) and in the forthcoming UNCITRAL model law …
The European Union's Human Rights Obligations Towards Distant Strangers, Aravind Ganesh
The European Union's Human Rights Obligations Towards Distant Strangers, Aravind Ganesh
Michigan Journal of International Law
Section I begins by setting out certain provisions added by the Lisbon Treaty requiring the European Union to promote human rights, democracy, and the rule of law in all its “relations with the wider world.” Section II then recounts a recent interpretation of these provisions, which understands them primarily as mandating compliance with international law, and thus largely denies extraterritorial human rights obligations to protect. While the fundamentals of this “compliance” reading are correct, Section III demonstrates that the notion of international law involved here entertains an expansive view of prescriptive jurisdiction, that is, a political institution’s authority to prescribe …
Privacy Almighty? The Cjeu's Judgment In Google Spain Sl V. Aepd, David J. Stute
Privacy Almighty? The Cjeu's Judgment In Google Spain Sl V. Aepd, David J. Stute
Michigan Journal of International Law
The Internet has matured into an unprecedented repository of data, retrievable through myriad unique “links,” or Uniform Resource Locators. Yet, this wealth of information only became broadly accessible through the invention and continual development of algorithm-based search engines. Keyword searches empowered search-engine users to find—and sometimes stumble upon—information with great ease. Indeed, search-engine indices arguably have become the most comprehensive catalogues of information the world has ever seen. This wealth of accessible information poses challenges to traditional notions of privacy: aspects of our private and public lives, which previously would have rarely left the vicinities of our immediate social or …
The Incitement Of Terrorism On The Internet: Legal Standards, Enforcement, And The Role Of The European Union, Ezekiel Rediker
The Incitement Of Terrorism On The Internet: Legal Standards, Enforcement, And The Role Of The European Union, Ezekiel Rediker
Michigan Journal of International Law
Consider this sentence: “The Shining Path is a heroic organization.” Over the past thirty years, the Shining Path has waged a violent guerilla war against the Peruvian government, prompting the European Union to designate the group as a terrorist organization. In certain European countries, speech inciting or glorifying terrorist organizations is criminalized. As a result, citizens risk prosecution if they do not carefully limit what they say about the Shining Path, or other terrorist organizations. But where does free speech end and incitement to terrorism begin? The debate over free speech and incitement to terrorism is actively being played out …
Can The Eu Be A Constitutional System Without Universal Access To Judical Review, Brian Libgober
Can The Eu Be A Constitutional System Without Universal Access To Judical Review, Brian Libgober
Michigan Journal of International Law
This Comment engages with a central dilemma about the legal order of the European Union: is the EU a constitutional system, a treaty system, or a hybrid system for which we must develop a new conceptual vocabulary? Besides intrinsic interest, resolving this categorization problem is important for deciding a number of issues in European Union law. For example, are legal strategies that are normally available to parties in international law viable in the European legal order? Should Community law be supreme over national law? If so, what limits should be placed on that supremacy, and “who should have the ultimate …
The International Human Rights Regime And Supranational Regional Organizations: The Challenge Of The Eu, Pauline Hilmy
The International Human Rights Regime And Supranational Regional Organizations: The Challenge Of The Eu, Pauline Hilmy
Michigan Journal of International Law
The global legal order as we know it today developed largely to accommodate and facilitate the modern state system that arose in the wake of the 1648 Treaty of Westphalia. As a result, international law consists primarily of international agreements1 and customary rules arising out of state practice and recognition.2 States still remain the primary subjects of international law today, but they are increasingly joined by other actors on the global stage, including international organizations and individuals–and the global legal order has struggled to adapt and adjust.
Reconstructing The Effective Control Criterion In Extraterritorial Human Rights Breaches: Direct Attribution Of Wrongfulness, Due Diligence, And Concurrent Responsibility, Vassilis P. Tzevelekos
Reconstructing The Effective Control Criterion In Extraterritorial Human Rights Breaches: Direct Attribution Of Wrongfulness, Due Diligence, And Concurrent Responsibility, Vassilis P. Tzevelekos
Michigan Journal of International Law
As one of the core elements of statehood, territory is inextricably linked to sovereignty. For this reason, jurisdiction is primarily territorial. In principle, the sphere of power of the sovereign state—including its competence to exercise legislative, judicial, and executive authority—applies within the confines of its own territory. Otherwise, the state risks interfering with the sovereignty of other states and thereby breaking one of the fundamental principles of Public International Law (PIL), that of sovereign equality. The principle of sovereign equality dictates that all assertions of jurisdiction have to be balanced with the sovereign rights of other states. This is why …
Trafficking In Europe: An Analysis Of The Effectiveness Of European Law, Saadiya Chaudary
Trafficking In Europe: An Analysis Of The Effectiveness Of European Law, Saadiya Chaudary
Michigan Journal of International Law
This Essay looks at the manifestation of various forms of human trafficking within Europe and analyzes the effectiveness of current European law provisions in combating trafficking and protecting victims. The Essay will accomplish this by examining recent and current cases before the European Court of Human Rights and the comparative gap between European standards and domestic procedures in the United Kingdom. The United Kingdom is a well-known destination state for trafficking victims' and consequently is required to meet obligations under international law toward a significant number of individuals who have been forced into exploitation in the United Kingdom.
Islam In The Secular Nomos Of The European Court Of Human Rights, Peter G. Danchin
Islam In The Secular Nomos Of The European Court Of Human Rights, Peter G. Danchin
Michigan Journal of International Law
If, with the benefit of hindsight, Mr. Choudhury's case was a harbinger of the emergence of various problems associated with Islam and the rights of Muslim minorities in European nation-states, then the events of September 11, 2001 have propelled these issues to the forefront of law and politics in a way unimaginable even a decade earlier. In Denmark, cartoons depicting the Islamic prophet Muhammad as a suicide bomber have been published leading to protests and violence across Europe and the Islamic world; a law prohibiting students in public schools from wearing symbols or attire through which they conspicuously exhibit a …
Revisiting Germany's Residenzpflicht In Light Of Modern E.U. Asylum Law, Paul Mcdonough
Revisiting Germany's Residenzpflicht In Light Of Modern E.U. Asylum Law, Paul Mcdonough
Michigan Journal of International Law
This Note explores whether the E.C. treaties, nonetheless, provide the European Court of Justice (ECJ) sufficient competence to use the Reception Directive as a vehicle to assess the Residenzpflicht in relation to the Refugee Convention. It concludes that, through the Residenzpflicht, Germany denies refugees lawfully present their Convention right to free movement within its territory, and that the ECJ can order the restoration of this right.
Transnational Families In Crisis: An Analysis Of The Domestic Violence Rule In E.U. Free Movement Law, Adam Weiss
Transnational Families In Crisis: An Analysis Of The Domestic Violence Rule In E.U. Free Movement Law, Adam Weiss
Michigan Journal of International Law
This Essay analyzes a concrete rule of European law that has emerged to address the problem of domestic violence within certain transnational families. The domestic violence rule is found in Article 13 of the European Community Free Movement Directive (the Directive), legislation that governs the rights of E.U. citizens and their family members to enter and reside in other E.U. Member States.6 The rule affects the rights of a discrete group: non-E.U. ("third-country national") family members of migrant E.U. citizens, that is, E.U. citizens who have moved to another E.U. Member State (the "host State") to exercise residence rights there. …
From Pinochet To Rumsfeld: Universal Jurisdiction In Europe 1998-2008, Wolfgang Kaleck
From Pinochet To Rumsfeld: Universal Jurisdiction In Europe 1998-2008, Wolfgang Kaleck
Michigan Journal of International Law
This Essay provides a survey of more than fifty universal jurisdiction proceedings in European courts and illustrates that universal jurisdiction is no longer a seldom-used theoretical concept, but a widespread practice. However, it is a practice that faces a number legal and practical obstacles identified here. Similar difficulties are encountered in other mechanisms used to combat impunity, including territorial and personality jurisdiction, state accountability at the European Court of Human Rights (ECtHR) and the Inter-American Court of Human Rights (IACtHR), and civil litigation in the United States. The Essay then begins an evaluation of the last ten years of universal …
The E.U. Leniency Program And U.S. Civil Discovery Rules: A Fraternal Fight?, Roberto Grasso
The E.U. Leniency Program And U.S. Civil Discovery Rules: A Fraternal Fight?, Roberto Grasso
Michigan Journal of International Law
This Note provides a European perspective on the issues raised by In re Rubber Chemicals Antitrust Litigation (Rubber Chemicals), and expresses concern regarding the inconsistent approach taken by U.S. courts to the discoverability of the Leniency submissions. This Note also warns that this inconsistency may have a chilling effect on participation in the E.U. Leniency Program and may thus impede enforcement of European anti-cartel law.
Are Eu Trade Sanctions On Burma Compatible With Wto Law?, Robert L. Howse, Jared M. Genser
Are Eu Trade Sanctions On Burma Compatible With Wto Law?, Robert L. Howse, Jared M. Genser
Michigan Journal of International Law
This Article will explore the European Union's approach to Burma. The European Union, until recently, has implemented quite limited trade sanctions against the Burmese junta. According to the most recent figures, E.U. countries still import €306 million ($454 million) of commodities and products, ninety-five percent of which are textiles, timber, gems, and precious metals. However, the Common Position of November 19, 2007, strengthens considerably E.U. measures against the Burmese regime and contains a ban on the importation of these goods from Burma. Further, the Common Position requires E.U. countries to prohibit intentional and knowing "participation" in activities that "directly or …
Compensation For Porperty Under The European Convention On Human Rights, Tom Allen
Compensation For Porperty Under The European Convention On Human Rights, Tom Allen
Michigan Journal of International Law
This Article asks whether the right to property, as a human right, serves the same general purpose as other human rights. The Article does so by examining the standards relating to compensation for deprivations of property under the European human rights system. If the system protects property for similar reasons as other fundamental rights, the interpretation of the right to property should draw upon the principles developed in relation to the interpretation of other rights. However, if the right to property is distinct from other human rights, then perhaps guidance on its interpretation should come from comparative law, specifically in …
Militating Democracy: Comparative Constitutional Perspectives, Ruti Teitel
Militating Democracy: Comparative Constitutional Perspectives, Ruti Teitel
Michigan Journal of International Law
Can constitutional review by judges save democracy? This Article identifies and discusses the rise of "militant constitutional democracy" by exploring diverse approaches to the role of constitutional and transnational judicial review in rights protection and the challenges that these approaches present to the workings of democracy, the possibilities of compromise, consensus, and conciliation in political life, and the challenge to other constitutional values as well. "Militant constitutional democracy" ought to be understood as belonging to transitional constitutionalism, associated with periods of political transformation that often demand closer judicial vigilance in the presence of fledgling and often fragile democratic institutions; it …
Transgovernmental Networks Vs. Democracy: The Case Of The European Information Privacy Network, Francesca Bignami
Transgovernmental Networks Vs. Democracy: The Case Of The European Information Privacy Network, Francesca Bignami
Michigan Journal of International Law
The perspective offered by this Article is twofold. The emergence of transgovernmental networks gives rise to two questions, one causal and the other normative. First, how do we explain transnational cooperation through networks? Why do governments and regulators choose to establish networks rather than retain virtually limitless discretion over policymaking, conditioned only by international legal obligations? Based on the author’s examination of the records of the intergovernmental negotiations on the Data Protection Directive, this Article concludes that one precondition for fettering national discretion through networks is common preferences among governments on the substance of the policy to be administered. Compared …
Worth Doing Well- The Improvable European Union Constitution, Stephen C. Sieberson
Worth Doing Well- The Improvable European Union Constitution, Stephen C. Sieberson
Michigan Journal of International Law
As background for this critique of the Constitution, Part II of this Article provides a brief overview of the existing EU Treaties, their shortcomings, and the political processes that culminated in the creation of the new Constitution. Of particular interest are certain goals articulated for the new document, such as the desire to replace the complex Treaties with a simpler, more approachable instrument. Part III is a summary of the Constitution's textual content, details that are necessary to illuminate the analysis that follows. Part IV offers a critical review of the awkward manner in which the Constitution is organized. In …
Wto And Gmos: Analyzing The European Community's Recent Regulations Covering The Labeling Of Genetically Modified Organisms, Brian Schwartz
Wto And Gmos: Analyzing The European Community's Recent Regulations Covering The Labeling Of Genetically Modified Organisms, Brian Schwartz
Michigan Journal of International Law
This Note explores the compatibility of the EC's GMO regulations within the framework of the Agreement on the Application of Sanitary and Phytosanitary Measures ("SPS Agreement"), the Agreement on Technical Barriers to Trade ("TBT Agreement"), and the General Agreement on Tariffs and Trade 1994 ("GATT 1994" or "GAT"), all integral parts of the WTO Agreement. Part II presents arguments for or against the use of GM-products. Part III explores the concept of ecolabeling by analyzing the general goals of such programs, including the economic theory behind green consumerism and the characteristics necessary for effective schemes. Part IV describes the core …
The New Codex Alimentarius Commission Standards For Food Created With Modern Biotechnology: Implications For The Ec Gmo Framework's Compliance With The Sps Agreement, Aaron A. Ostrovsky
The New Codex Alimentarius Commission Standards For Food Created With Modern Biotechnology: Implications For The Ec Gmo Framework's Compliance With The Sps Agreement, Aaron A. Ostrovsky
Michigan Journal of International Law
This Note makes two assertions. First, despite the fact that the Codex guidelines do not specifically invoke the Precautionary Principle in name, it can indeed be read into the guidelines in the amount of deference given to states in how they assess risk. This in turn means that the E.C.'s Deliberate Release Directive should be enjoy a presumption of compliance with both the SPS Agreement and the GATT. The second assertion is that even if the adjudicating body of the WTO finds that the Deliberate Release Directive, in relying on the Precautionary Principle, prescribes a higher level of protection than …
Judicial Dialogue For Legal Multiculturalism, Charles H. Koch Jr.
Judicial Dialogue For Legal Multiculturalism, Charles H. Koch Jr.
Michigan Journal of International Law
This Article asserts that judicial exchange rather than dominance has inherent advantages as a technique for evolving a global legal culture. For insight into the global task, the Article looks first at an internecine struggle within the continental system. For further background, it describes how the U.S. Supreme Court has accommodated deviations from the basic legal model in U.S. administrative law as well as other internal U.S. legal systems. The supranational tribunals in the European setting and U.S. Supreme Court have shown the capacity to engage in dialogues over diverse legal philosophies. These experiences demonstrate the advantages of a mix …
Envisioning A Global Legal Culture, Charles H. Koch Jr.
Envisioning A Global Legal Culture, Charles H. Koch Jr.
Michigan Journal of International Law
To encourage all, but particularly U.S., lawyers to think about transformation of the law, this Article will envision a global legal regime. The purpose is more reflective than predictive. Nominally, the Article has three parts. The first Part offers an overview description of the emerging supranational legal institutions and the major forces moving them. The next Part will outline civil law legal concepts and provide background for common law readers. To further the goal of this Article, it will do so as it suggests some issues that will arise as the civil law system is incorporated into the global legal …
A Solution To The Yahoo! Problem? The Ec E-Commerce Directive As A Model For International Cooperation On Internet Choice Of Law, Mark F. Kightlinger
A Solution To The Yahoo! Problem? The Ec E-Commerce Directive As A Model For International Cooperation On Internet Choice Of Law, Mark F. Kightlinger
Michigan Journal of International Law
Instead of attacking or defending the French or the U.S. courts, this Article proposes to focus on the Yahoo! case from a different perspective. As is argued in Section III.D below, disputes like the Yahoo! case over which country's laws apply to a website and its operator seem likely to proliferate as Internet usage expands, demanding significant enforcement resources from countries and posing important compliance challenges for companies and other organizations operating on the Internet. Thus, it may be useful to consider developing an international agreement that would address, and in many instances resolve, such disputes about "jurisdiction to prescribe” …
The Act Of Hungarians Living Abroad: A Misguided Approach To Minority Protection, Christin J. Albertie
The Act Of Hungarians Living Abroad: A Misguided Approach To Minority Protection, Christin J. Albertie
Michigan Journal of International Law
This Note analyzes the Hungarian Status Law in the context of general principles of international law. By specifically examining the Hungarian minority, this Note questions whether the implementation of the Hungarian Status Law is the most effective method of ensuring the protection and respect of the Hungarian minority in Eastern Europe. The conclusion argues that the unilateral approach of the Hungarian Status Law should be abandoned for a bilateral approach to secure rights for the Hungarian minority.
Protection Against Unwarranted Searches And Seizures Of Corporate Premises Under Article 8 Of The European Convention On Human Rights: The Colas Est Sa V. France Approach, Marius Emberland
Michigan Journal of International Law
In this Article, the author considers the judgment delivered April 16, 2002, by the European Court of Human Rights in the case of Colas Est SA v. France. The judgment concerned the interpretation of Article 8 of the European Convention on Human Rights (ECHR), which provides: (1) Everyone has the right to respect for his private and family life, his home and his correspondence. (2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests …
A Ghost Is Haunting Europe, Maria Grahn-Farley
A Ghost Is Haunting Europe, Maria Grahn-Farley
Michigan Journal of International Law
Review of Responsible Selves: Women in the Nordic Legal Cultures (Kevät Nousiainen, Åsa Gunnarsson, Karin Lundström, & Johanna Niemi-Kiesiläinen eds.)
The Effectiveness Of European Community Law With Specific Regard To Directives: The Critical Step Not Taken By The European Court Of Justice, Carla A. Varner
The Effectiveness Of European Community Law With Specific Regard To Directives: The Critical Step Not Taken By The European Court Of Justice, Carla A. Varner
Michigan Journal of International Law
The purpose of this Note is to investigate the European Court of Justice's less expansive treatment of directives as compared to other forms of EC law through its failure to apply horizontal direct effect to directives. More specifically, this Note attempts to answer two questions which arise from the current status of ECJ jurisprudence: First, why has the Court been reluctant to implement horizontal direct effect for directives, especially in light of other actions it has taken to increase the potency of EC law? Second, given the alternative steps taken by the ECJ, is it still necessary to establish horizontal …
Labor And The Global Economy: Four Approaches To Transnational Labor Regulation, Katherine Van Wezel Stone
Labor And The Global Economy: Four Approaches To Transnational Labor Regulation, Katherine Van Wezel Stone
Michigan Journal of International Law
This article examines the challenge to domestic labor regulation posed by the increasingly international economic and legal order. Part I analyzes the several ways in which increased global economic integration creates problems for labor. These problems include a decline in union bargaining power, a race-to-the-bottom in labor standards, and a weakening of labor's role as political actor. Part II identifies four approaches, or models, for transnational labor regulation that have emerged in the Western world in the past twenty years. These are: (1) preemptive legislation; (2) harmonization; (3) cross-border monitoring; and (4) extraterritorial jurisdiction. Part III explores the differences between …
Intellectual Property And The External Power Of The European Community: The New Extension, A. David Demiray
Intellectual Property And The External Power Of The European Community: The New Extension, A. David Demiray
Michigan Journal of International Law
"[T]heory is somewhat lagging behind the facts and developing only in reaction to these facts," argues C.W.A. Timmermans regarding the European Community's (the EC or the Community) legal basis for extending its external power. The Community tends to extend its external competence before having a clear authority for doing so and only later provides a post hoc rationale. This observation suggests that the justification, not the propriety, of a newly acquired external competence is the question. Nowhere is this modus operandi better illustrated, or more sorely tested, than by the Community's growing involvement with and pursuit of international intellectual property …
A Practitioner's Guide To The Maastricht Treaty, Michael H. Abbey, Nicholas Bromfield
A Practitioner's Guide To The Maastricht Treaty, Michael H. Abbey, Nicholas Bromfield
Michigan Journal of International Law
Before undertaking a section by section summary of the Maastricht Treaty, this article will briefly discuss some of the highlights of the Treaty and the prospects for European Monetary Union.