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Articles 181 - 210 of 226
Full-Text Articles in Law
The Implementation Of The Final Act Of Helsinki: The Creation Of New Structures Or The Involvement Of Existing Ones?, Pieter Van Dijk
The Implementation Of The Final Act Of Helsinki: The Creation Of New Structures Or The Involvement Of Existing Ones?, Pieter Van Dijk
Michigan Journal of International Law
First, this essay will give some basic information on the character of the Conference on Security and Co-operation in Europe as a process and on the legal nature of the Final Act of Helsinki. Second, it will discuss the follow-up mechanism and its institutional structures. Finally, the essay will evaluate the present situation and attempt to answer the question whether there is any need for the establishment of one or more new international organizations or other structures for the furtherance of the purposes which are (also) covered by the CSCE and its Final Act.
Justice In The International System, Thomas M. Franck, Steven W. Hawkins
Justice In The International System, Thomas M. Franck, Steven W. Hawkins
Michigan Journal of International Law
"Justice," Rawls claims in A Theory of Justice," is the first virtue of social institutions…" The principles of justice of which Rawls speaks, however, except for a brief excursion, "apply only within the borders of a nation-state." Our purpose is to see whether justice is also the first virtue of the international system, the social institutions of the community of nations. More specifically, is justice the definitive virtue by which to judge international law? This article seeks to answer those questions by examining the concept of justice as developed by various theorists, culminating in the contemporary Rawlsian theory of …
Models For A Gorbachev Constitution Of The U.S.S.R., John N. Hazard
Models For A Gorbachev Constitution Of The U.S.S.R., John N. Hazard
Michigan Journal of International Law
Western Sovietologists were startled when Secretary General Mikhail S. Gorbachev set his craftsmen to work in the Summer of 1988 to prepare a revised structure for the Union of Soviet Socialist Republics ("U.S.S.R."). While some hint of what was to come had been given by publications prior to the 19th Communist Party Conference, and while some of these appeared in the theses to be debated at the Conference, Westerners expected little more than a call from the tribune for change in attitudes. Basic State structures established by Leonid Brezhnev in his 1977 Constitution had not previously been questioned. Critics levelled …
National Treatment Obligations And Non-Tariff Barriers, John H. Jackson
National Treatment Obligations And Non-Tariff Barriers, John H. Jackson
Michigan Journal of International Law
This article explores the national treatment obligation of GATT, explains some of its difficult applications, and analyzes how the obligation has been affected by some of the agreements completed in the Tokyo Round of negotiations (1973-1979).
Reflections On State Responsibility For Violations Of Explicit Protectorate, Mandate, And Trusteeship Obligations, W. Michael Reisman
Reflections On State Responsibility For Violations Of Explicit Protectorate, Mandate, And Trusteeship Obligations, W. Michael Reisman
Michigan Journal of International Law
There is a rich body of law dealing with breach of treaty, its consequences and the procedural options it gives to the complying party. But violations of treaty obligations by a protecting state are procedurally different from violations between states in legal and political parity and negotiating at arm's length. The protected state or state under protectorate has, by definition, a restricted if not completely suspended competence to operate at the international level and hence is unable to protect its interests against violations by the erstwhile protector. Thus, it should be no surprise that international decision has suspended the operation …
Jurisdiction Over Foregin Flag Vessels And The U.S. Courts: Adrift Without A Compass?, Stefan A. Riesenfeld
Jurisdiction Over Foregin Flag Vessels And The U.S. Courts: Adrift Without A Compass?, Stefan A. Riesenfeld
Michigan Journal of International Law
Jurisdiction of a nation over vessels flying a foreign flag and over persons aboard such vessels should be a relatively simple and well settled matter. The sad fact, however, is that it is not. Moreover, the recent 1986 Maritime Drug Law Enforcement Act has added unnecessary and unexplainable confusion.
From Cutlass To Cat-O'-Nine Tails: The Case For International Jurisdiction Of Mutiny On The High Seas, George P. Smith Ii
From Cutlass To Cat-O'-Nine Tails: The Case For International Jurisdiction Of Mutiny On The High Seas, George P. Smith Ii
Michigan Journal of International Law
This article will first discuss the historical background of mutiny, describing several of the major mutinies at sea that have been of interest to legal historians. Then will come an analysis of the history of piracy and an exploration of its symbiotic relationship with mutiny. Subsequent analysis will be given over to municipal law provisions outlawing mutiny - with concentration placed on the postures taken by those nation-states which subscribe to or are guided by the common law. A study of those relevant principles of international law regarded as controlling, as a consequence of historical vectors of force and municipal …
Law And Alternative Security, Burns H. Weston
Law And Alternative Security, Burns H. Weston
Michigan Journal of International Law
Rightly or wrongly, nuclear weapons are regarded, in their threat role at least, as effective guardians of national security. Yet nothing is more menacing to the survival of our planet than the credibly communicated threat to use nuclear weapons if and when sufficiently provoked. Ergo, to escape the mind-boggling risks posed by nuclear deterrence, thinking about how to ensure world security without relying upon nuclear weapons, either extensively or at all, is as much a political as it is a moral imperative- in truth, a matter of physical survival. Without an effective alternative to nuclear deterrence, there is no …
Proposals To Establish A Nordic Nuclear-Weapon-Free Zone, Bengt Broms
Proposals To Establish A Nordic Nuclear-Weapon-Free Zone, Bengt Broms
Michigan Journal of International Law
Today, after a long silence, the Nordic States are again investigating the idea of establishing a Nordic nuclear-weapon-free zone. The renewed exchange of views is no doubt partly related to the continuing development of nuclear weapons and partly to the fear that even in circumstances where nuclear weapons would not be used against the Nordic States they present a threat to the region should major war break out. This fear was mentioned by Dr. Urho Kekkonen, the President of the Republic of Finland, in an address he delivered at the Swedish Institute of International Affairs in Stockholm on May 8, …
Treaties In A Constitutional Democracy, Louis Henkin
Treaties In A Constitutional Democracy, Louis Henkin
Michigan Journal of International Law
This essay is an adaptation of one of the Cooley Lectures delivered at the University of Michigan Law School, Nov. 14-16, 1988, on the theme "Constitutionalism, Democracy and Foreign Affairs," due to be published by Columbia University Press in 1990.
The High Seas And The International Seabed Area, Bernard H. Oxman
The High Seas And The International Seabed Area, Bernard H. Oxman
Michigan Journal of International Law
This article is set out in three parts. The first section briefly describes the geographic scope of the sea. The second section analyzes the geographic scope of the high seas. The last section presents six agreed legal principles relevant to the seabed debate which – contrary to the tone of much of the debate - constitute a substantial and growing consensus on the elements of the legal regime of the seabed beyond coastal state jurisdiction. The article concludes by suggesting that more is agreed in this area than is often acknowledged, and that the broader debate would be aided by …
Canada's Sovereignty Over The Northwest Passage, Donat Pharand
Canada's Sovereignty Over The Northwest Passage, Donat Pharand
Michigan Journal of International Law
In 1968, when this writer published "Innocent Passage in the Arctic," Canada had yet to assert its sovereignty over the Northwest Passage. It has since done so by establishing, in 1985, straight baselines around the whole of its Arctic Archipelago. In August of that year, the U. S. Coast Guard vessel Polar Sea made a transit of the Northwest Passage on its voyage from Thule, Greenland, to the Chukchi Sea. Having been notified of the impending transit, Canada informed the United States that it considered all the waters of the Canadian Arctic Archipelago as historic internal waters and that a …
New Sea Boundaries In A Swedish Perspective, Hugo Tiberg
New Sea Boundaries In A Swedish Perspective, Hugo Tiberg
Michigan Journal of International Law
Sweden's experiences in applying the principles of the new international law of sea boundaries have more than local interest. Zonebound on all sides and thus never able to determine unilaterally the limits of her newly declared zones, the country has been forced to maneuver in a tight geographical and political situation against smaller brothers on three sides and a dominant eastern neighbor. It has been a tricky game in the borderland between legal principles and pragmatism, where trump cards have been islands of "sufficient" size, and where points have been scored through moderation rather than by overstraining the rules of …
The Anti-Dumping Systems Of Australia, Canada, The Eec And The United States Of America: Have Anti-Dumping Laws Become A Problem In International Trade?, Edwin A. Vermulst
The Anti-Dumping Systems Of Australia, Canada, The Eec And The United States Of America: Have Anti-Dumping Laws Become A Problem In International Trade?, Edwin A. Vermulst
Michigan Journal of International Law
This article, part of an in-depth comparative study of municipal anti-dumping laws in Australia, Canada, the European Economic Community and the United States, does not purport to undertake a comprehensive comparative analysis of the anti-dumping laws of the four jurisdictions. Its aim is, rather, to examine the core concepts and some of the core salient features of the laws as developed in actual practice, and to consider the problems that have arisen in these jurisdictions and their solutions. For this purpose, section I will analyze procedural issues, section II substantive issues of dumping, and section III substantive issues of injury. …
The Specificity Test Under U.S. Countervailing Duty Law, Pieter Matthijs Alexander
The Specificity Test Under U.S. Countervailing Duty Law, Pieter Matthijs Alexander
Michigan Journal of International Law
This article argues that "specificity" should be required before a benefit can be considered a countervailable subsidy. Subsequently, it explains the shades of the specificity test under U.S. law, and how the agency which administers countervailing duty law applies that test. Finally, this article discusses whether, under U.S. law, it is sufficient to rely on this test or whether additional requirements should be imposed before a benefit is deemed a countervailable subsidy.
Interpreting The Withdrawal Clause In Arms Control Treaties, Cindy A. Cohn
Interpreting The Withdrawal Clause In Arms Control Treaties, Cindy A. Cohn
Michigan Journal of International Law
This Note argues that although a danger to future arms control may exist, a treaty clause must be susceptible to interpretation and boundaries of use which are in harmony with general international law principles. As Professor Schwelb has stated: "[I]t cannot have been… the intention of the parties to throw the principle of pacta sunt servanda overboard in favor of the anarchic idea of the unfettered right of a sovereign state to free itself unilaterally from a treaty obligation." Although Schwelb admits that the Clause itself is subject to "auto-interpretation" by the states parties to the treaty, he adds that …
Isolationism Or Deference? The Alien Tort Claims Act And The Separation Of Powers, Victor A. Pappalardo
Isolationism Or Deference? The Alien Tort Claims Act And The Separation Of Powers, Victor A. Pappalardo
Michigan Journal of International Law
This Note examines the rationales behind Filartiga and other cases which have had the opportunity to pass upon its holding, notably the holdings in Tel-Oren v. Libyan Arab Republic and Forti v. Suarez- Mason. It then focuses on the validity of these rationales with respect to the constitutional separation of powers scheme. In so doing, it analyzes Filartiga's conclusions in light of the act of state and political question doctrines, two closely interrelated doctrines which have been at the forefront of the separation of powers criticisms of Filartiga. This Note concludes by suggesting that a clear case exists …
International Commercial Arbitration In The United States: Considering Whether To Adopt Uncitral's Model Law, Patrick John Potter
International Commercial Arbitration In The United States: Considering Whether To Adopt Uncitral's Model Law, Patrick John Potter
Michigan Journal of International Law
This Note will explore some of the areas overlooked by the Committee, including the benefits and burdens which adopting the Model Law would involve. Part One briefly describes the Model Law's background and provides a summary of its articles. Part Two discusses some factors that should be considered when Congress decides whether or not to adopt the Model Law. Part Three summarizes the present status of international commercial arbitration law in the United States, and recommends en bloc adoption of the Model Law. Enacting a separate international arbitration law that is familiar to foreigners will facilitate arbitration with U.S. parties. …
United States V. Palestine Liberation Organization: Continued Confusion In Congressional Intent And The Hierarchy Of Norms, Andrew R. Horne
United States V. Palestine Liberation Organization: Continued Confusion In Congressional Intent And The Hierarchy Of Norms, Andrew R. Horne
Michigan Journal of International Law
This Note concludes that while the court's rationale is disingenuous and misleading, the final decision was an appropriate reaffirmation of the importance which American jurisprudence places on international obligations. In Part One, this Note discusses whether the dispute resolution provisions of the Headquarters Agreement precluded the district court's jurisdiction over the parties and subject matter of this case. Part Two examines the constitutional hierarchy of the ATA and the Headquarters Agreement to determine which should govern this dispute. If the court had concluded that it lacked jurisdiction, the case would have been dismissed from the U.S. court system, leaving the …
Comparison: Japanese And American Plant Closing Laws, Allison Zousmer
Comparison: Japanese And American Plant Closing Laws, Allison Zousmer
Michigan Journal of International Law
This Note analyzes the American and Japanese approaches to plant closings and discusses to what extent the American government can apply the successful Japanese approach to its own labor relations system. The first part examines the specific provisions of the two nations' laws. Second, it illustrates how the divergent social rules and historical backgrounds influence the operation of the plant closing laws in both nations. Part three explores the impact and applicability of Japanese labor policies to American industrial practices. The Note concludes that although the Japanese provide a general model for a labor management system which combines cooperation and …
Equal Protection- The Social Dimension Of European Community Law, T. Koopmans
Equal Protection- The Social Dimension Of European Community Law, T. Koopmans
Michigan Journal of International Law
There are two reasons for drawing attention to the social dimension of European Community law. First, the EEC treaty comprises different provisions on social policy whose importance is consistently underestimated: the treaty is often considered as merely establishing a "common market" and as only concerning economic problems. This approach is prominent in the United States, where the business world is primarily interested in trade with, and within, the common market, and where much literature is devoted to this subject. Second, the social provisions of the EEC treaty have given rise to an interesting evolution in the case law of the …
Congress And Genocide: They're Not Going To Get Away With It, Jordan J. Paust
Congress And Genocide: They're Not Going To Get Away With It, Jordan J. Paust
Michigan Journal of International Law
Today at least, it is generally recognized that genocide is a crimen contra omnes, a crime under customary international law over which there is universal enforcement jurisdiction and responsibility. Indeed, it is commonly expected that the prohibition of genocide is a peremptory norm of customary international law, a jus cogens allowing no form of derogation under domestic or treaty-based law. It is also commonly understood that the definition of genocide contained in the Convention on the Prevention and Punishment of the Crime of Genocide defines that which is prohibited by customary jus cogens.
The United States, The United Nations, And Micronesia: Questions Of Procedure, Substance, And Faith, Harry G. Prince
The United States, The United Nations, And Micronesia: Questions Of Procedure, Substance, And Faith, Harry G. Prince
Michigan Journal of International Law
This study first considers the procedural requirements for proper termination and concludes that Security Council approval is required. Second, this writing identifies the major issues that should be considered if the proposed termination of the Trusteeship Agreement for Micronesia is subjected to Security Council review. Two basic concerns should be the propriety of the division of the Trust Territory into four separate entities and the legitimacy of the agreements between the new governments and the United States for continuing relations as either commonwealth or freely associated states. The history of and practice under the trusteeship system indicate that the particular …
The International Law Of State Responsibility: Revolution Or Evolution?, Pierre-Marie Dupuy
The International Law Of State Responsibility: Revolution Or Evolution?, Pierre-Marie Dupuy
Michigan Journal of International Law
After briefly summarizing the classical doctrine of state responsibility, Part One will discuss whether extending compensation to the harmful consequences of certain hazardous activities necessarily involves the recognition of a "liability for lawful conduct" without any link to traditional ideas of state responsibility. Part Two, starting again from responsibility for wrongful acts, will discuss whether raising a new category, the breach of an "essential obligation" or "international crimes," confers not only an obligation to make reparations, but a right, in both the victim state and the non-victim states, to sanction the responsible state.
The Changing Process Of International Law And The Role Of The World Court, J. Patrick Kelly
The Changing Process Of International Law And The Role Of The World Court, J. Patrick Kelly
Michigan Journal of International Law
Two approaches have emerged in recent American literature as to the appropriate United States attitude toward the World Court: (1) the re-acceptance of compulsory jurisdiction with various reservations to preserve vital American interests; and (2) the preservation of the status quo premised on a perception that the World Court is biased or misguided, while promoting the United States government's perspective on international law. This article argues that neither approach comes to terms with the wide disagreements about content and process in the international community. Both fail to promote the goals of an enhanced World Court or a better international legal …
The Beginning Of The Constitutional Era: A Bicentennial Comparative Study Of The American And French Constitutions, Rett R. Ludwikowski
The Beginning Of The Constitutional Era: A Bicentennial Comparative Study Of The American And French Constitutions, Rett R. Ludwikowski
Michigan Journal of International Law
This article is intended only to be introductory. The author is quite aware that the period surrounding the creation of the American Constitution has been profoundly studied; thorough analysis has been provided concerning both the origin and historical development of the American Constitution, as well as the intellectual background of the "founding generation." Characteristically, these studies have focused on the "American constitutional tradition," which means that they have been limited to little more than two centuries of colonial experience. This essay follows a different vein of inquiry. The author's purpose is not to add another article to the numerous works …
Hiring Ruled Contractual, Bill Gore, Douglas A. Kahn, Stan Shields
Hiring Ruled Contractual, Bill Gore, Douglas A. Kahn, Stan Shields
Articles
On December 29, 1988, the California Supreme Court decided Foley vs. Interactive Data Corp., perhaps the most eagerly awaited state supreme court decision in years. The Foley ruling, which immediately was hailed as a tremendous victory for California employers, eliminated punitive damage awards for many wrongfully terminated employees. That was good news for the employers. The decision, however, also provided employers with sobering news. Most significantly, the court ruled that employment relationships essentially are contracts, with terms created by the reasonable expectation of the parties. Thus, the majority of California employees now have a right to sue for breach …
Authority And Value: Reflections On Raz's Morality Of Freedom, Donald H. Regan
Authority And Value: Reflections On Raz's Morality Of Freedom, Donald H. Regan
Articles
Joseph Raz's The Morality of Freedom1 is full of subtle, original, and thought provoking arguments. It also manifests abundantly Raz's philosophical good sense and sensitivity to the complexities of the moral life. These are reasons enough to class it with the handful of genuinely important books whose appearance in the last two decades has constituted a renaissance in political philosophy. But in my opinion, Raz has another, and even stronger claim on our attention: He comes closer to the truth about political morality than anyone has for nearly a century. (Possibly much longer, but we need not attempt to decide …
A Skeptical Look At Contemporary Republicanism, Terrance Sandalow
A Skeptical Look At Contemporary Republicanism, Terrance Sandalow
Articles
A growing number of scholars have been led by that impulse to an interest in 'the republican tradition," arguing that it offers resources for correcting the deformities they perceive in contemporary life and for which they hold liberalism responsible. Republicanism is a mansion with many rooms, and its modem interpreters emphasize varying possibilities within it, but common to all is the vision of a politics that recognizes and seeks to strengthen the social bonds within a political community. Within the limits set by that vision differences abound, just as differences exist among liberals concerning appropriate political foundations for individual freedom. …
An Introduction To The American Criminal Justice Process, Jerold H. Israel
An Introduction To The American Criminal Justice Process, Jerold H. Israel
Book Chapters
A useful description of the American criminal justice process must begin by acknowledging that there is no single set of criminal justice procedures applied uniformly throughout this country. Variations exist both from jurisdiction to jurisdiction and from one type of case to another within the same jurisdiction. In our overview, we will take note of a few of the more significant variations, but our primary focus will be on the procedural pattern followed for most cases in most jurisdictions. In this section, we will briefly examine three structural elements that account for many of the variations in the process. If …