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Articles 1 - 14 of 14
Full-Text Articles in Law
The Unresolved Equation Of Espionage And International Law, A. John Radsan
The Unresolved Equation Of Espionage And International Law, A. John Radsan
Michigan Journal of International Law
This Essay, in order to offer up something to that appetite, is divided into five parts. After this introduction, the author, A. John Radsan, describes a Hegelian impulse, the perpetual drive to find unity in disorder. That impulse, for better or worse, creates the train and the track for many of the academy's journeys. Radsan then defines what is meant by "intelligence activities" for purposes of this Essay, after which Radsan surveys the scholarship that existed before this symposium on the relationship between espionage and international law. As the number of pages written on this topic suggests, scholarship on espionage …
Keynote Address, Jeffrey H. Smith
Keynote Address, Jeffrey H. Smith
Michigan Journal of International Law
This afternoon, I want to touch briefly on a number of issues rather than discuss one or two to death. I chose this approach because it seemed an appropriate way to open a conference. I also chose it because I hope I can convince you that intelligence and international law interact in a way that simultaneously strengthens the law and improves intelligence; that law matters, especially in time of war; and that both good intelligence and good law have one common core value: integrity. So that you will have a sense of the perspective that I bring to this, I …
What Is The Use Of International Law? International Law As A 21st Century Guardian Of Welfare, Emmanuelle Jouannet
What Is The Use Of International Law? International Law As A 21st Century Guardian Of Welfare, Emmanuelle Jouannet
Michigan Journal of International Law
The thesis of this Essay is that international law currently represents a welfare-driven and bio-political structuring mode for international society which not only counterbalances liberal economic globalization, but also draws from it. This inquiry offers a political interpretation of contemporary international law to clarify its functioning and the effects of its legal rationality, as well as to answer the question of its efficacy. An evolution has taken place for at least a century and has only attainted partial completion. It is the fruit of modernity that constantly projects its aspirations, its unity, and its contradictions onto the international legal system. …
Secrets And Lies: Intelligence Activities And The Rule Of Law In Times Of Crisis, Simon Chesterman
Secrets And Lies: Intelligence Activities And The Rule Of Law In Times Of Crisis, Simon Chesterman
Michigan Journal of International Law
This Article will consider generally the prospects for an approach to intelligence activities based on the rule of law, focusing on the problem of covertness. In particular, it will examine the debate over how law should deal with crises, epitomized by the "ticking time-bomb" hypothetical. On the one hand, some call for a pragmatic recognition that, in extremis, public officials may be required to act outside the law and should seek after-the-fact ratification of their "extra-legal measures." On the other hand, others argue that the embrace of "extra-legal measures" misconceives the rule of law, underestimates the capacity of a …
State Intelligence Gathering: Conflict Of Laws, Charles H.B. Garraway
State Intelligence Gathering: Conflict Of Laws, Charles H.B. Garraway
Michigan Journal of International Law
This Article begins with an examination of the development of the law of war (Part II) and human rights law (Part III) before looking at the differing legal categories of armed conflict (Part IV). It then examines the applicability of human rights law in situations of armed conflict (Part V) and the increasing complexity of defining violence, whether as armed conflict or otherwise (Part VI). The Article proceeds with an examination of the overlap between the law of war and human rights law (Part VII) and the risk of divergence that this overlap causes (Part VIII). Finally, it seeks to …
Protection Elsewhere: The Legal Implications Of Requiring Refugees To Seek Protection In Another State, Michelle Foster
Protection Elsewhere: The Legal Implications Of Requiring Refugees To Seek Protection In Another State, Michelle Foster
Michigan Journal of International Law
This Article first questions the legitimacy of protection elsewhere practices. It then considers the circumstances in which the transfer of refugees might take place. It should be emphasized that the Michigan Guidelines set out the minimum requirements and constraints imposed by international law when a state wishes to implement a protection elsewhere policy. In addition, in some instances the Michigan Guidelines engage in "progressive development" of the law by suggesting safeguards that, while not strictly required by international law, should be respected in order to ensure the implementation of such policies in a way that protects and ensures the rights …
Averting Catastrophe: Why The Nuclear Nonproliferation Treaty Is Losing Its Deterrence Capacity And How To Restore It, Orde F. Kittrie
Averting Catastrophe: Why The Nuclear Nonproliferation Treaty Is Losing Its Deterrence Capacity And How To Restore It, Orde F. Kittrie
Michigan Journal of International Law
This Article analyzes from a legal perspective the responses of the international community, and especially the Security Council, to the examples of nuclear proliferation outlined in this Article and the impact of those responses on the vitality of the nuclear nonproliferation regime. In doing so, the Article identifies and focuses on two key, interrelated themes. The first theme is the effect on these responses of the NPT's remarkably weak mechanisms for detecting violations of NPT obligations. The second theme is the frequent strong reluctance of the international community, including the Security Council, to impose serious sanctions for proliferation activity when …
Privatization And The Human Right To Water: Challenges For The New Century, Melina Williams
Privatization And The Human Right To Water: Challenges For The New Century, Melina Williams
Michigan Journal of International Law
This Note considers implications for the human fight to water in the context of the trend toward privatization of water supplies. Part II examines the legal bases of the right to water, and Part III discusses the potential obligations that arise from it. Part IV then looks at the interaction between the fight to water and arrangements to privatize water supplies. This Note posits that human rights law does not simply support or oppose privatization of water supplies and services. Rather, bringing a human rights perspective to the problem of providing water to the world's population both clarifies the minimum …
Introduction, Steven R. Ratner
Introduction, Steven R. Ratner
Michigan Journal of International Law
The articles in this symposium issue of the Michigan Journal of International Law represent the product of a historic and path-breaking conference held at the University of Michigan Law School in February 2007. The two-day meeting brought together an extraordinary array of scholars and practitioners to examine closely the relevance of international law for the gathering of intelligence by states. Although this long-neglected topic has gained increased relevance since the use of more controversial intelligence-gathering methods by the United States as part of its "global war on terror," many of the legal issues are as old as the craft of …
Counterintuitive: Intelligence Operations And International Law, Glenn Sulmasy, John Yoo
Counterintuitive: Intelligence Operations And International Law, Glenn Sulmasy, John Yoo
Michigan Journal of International Law
The question before us is whether international law is useful or required to govern the covert intelligence-gathering activities of nation-states during peacetime. The very notion that international law is currently capable of regulating intelligence gathering is dubious. In fact, we suggest that international regulation of intelligence operations could have the perverse effect of making international conflict more, rather than less, likely. Certainly, there is legitimate space for coordination and cooperation between states in sharing intelligence, but such "sharing" does not involve significant needs for universal regulation by international law. Simply stated, it is not in the interests of nation-states or …
What's International Law Got To Do With It? Transnational Law And The Intelligence Mission, James E. Baker
What's International Law Got To Do With It? Transnational Law And The Intelligence Mission, James E. Baker
Michigan Journal of International Law
This Article describes a continuum of contemporary threats to U.S. national security, with a focus on nonstate terrorism. Part III addresses the role of intelligence and national security law, and in particular law addressed to process, in combating these threats. Good process advances the liberty and safety interests embodied in the concept of national security. Good process improves the quality of decision. It also enhances accountability, which in turn improves decision. Where good process is defined in law to include executive directive, it is better insulated from the immediate imperatives of secrecy and speed.
Towards A Right To Privacy In Transnational Intelligence Networks, Francesca Bignami
Towards A Right To Privacy In Transnational Intelligence Networks, Francesca Bignami
Michigan Journal of International Law
Privacy is one of the most critical liberal rights to come under pressure from transnational intelligence gathering. This Article explores the many ways in which transnational intelligence networks intrude upon privacy and considers some of the possible forms of legal redress. Part II lays bare the different types of transnational intelligence networks that exist today. Part III begins the analysis of the privacy problem by examining the national level, where, over the past forty years, a legal framework has been developed to promote the right to privacy in domestic intelligence gathering. Part IV turns to the privacy problem transnationally, when …
Individual And State Responsibility For Intelligence Gathering, Dieter Fleck
Individual And State Responsibility For Intelligence Gathering, Dieter Fleck
Michigan Journal of International Law
It is the purpose of this contribution to examine relevant norms and principles for assessing acts of intelligence gathering under international law (Part I), evaluate legal problems of attribution of such acts (Part II), and, where governments commit wrongful acts, look into circumstances precluding their wrongfulness (Part III). Based on these considerations, legal consequences for criminal accountability (Part IV) and reparation (Part V) will be discussed. Finally, some conclusions may be drawn (Part VI).
An Unrecognized State In Foreign And International Courts: The Case Of The Republic Of China On Taiwan, Pasha L. Hsieh
An Unrecognized State In Foreign And International Courts: The Case Of The Republic Of China On Taiwan, Pasha L. Hsieh
Michigan Journal of International Law
This Article provides a comparative analysis of the status of the Republic of China on Taiwan in foreign and international settings. Most existing literature written from the traditional public international law perspective focuses on Taiwan's separate statehood from China. This Article addresses an important pragmatic issue that international courts and courts in foreign countries frequently face: whether Taiwan is a "foreign State" for particular salutatory purposes in judicial proceedings. Part I of this Article provides an overview of China-Taiwan relations and the status of Taiwan under international law. I argue that the ROC on Taiwan has been a sovereign State …