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Promises Unfulfilled: How Investment Arbitration Tribunals Mishandle Corruption Claims And Undermine International Development, Andrew T. Bulovsky Oct 2019

Promises Unfulfilled: How Investment Arbitration Tribunals Mishandle Corruption Claims And Undermine International Development, Andrew T. Bulovsky

Michigan Law Review

In recent years, the investment-arbitration and anti-corruption regimes have been in tension. Investment tribunals have jurisdiction to arbitrate disputes between investors and host states under international treaties that provide substantive protections for private investments. But these tribunals will typically decline to exercise jurisdiction over a dispute if the host state asserts that corruption tainted the investment. When tribunals close their doors to ag-grieved investors, tribunals increase the risks for investors and thus raise the cost of international investment. At the same time, the decision to decline jurisdiction creates a perverse incentive for host states to turn a blind eye to ...


International Civil Individual Responsibility And The Security Council: Building The Foundations Of A General Regime, Vincent-Joël Proulx Jan 2019

International Civil Individual Responsibility And The Security Council: Building The Foundations Of A General Regime, Vincent-Joël Proulx

Michigan Journal of International Law

This Article focuses on a few tools at the disposal of the United Nations Security Council (“UNSC”) to enhance individual (read: civil) responsibility concerning nonstate terrorist actors with a view to opening other avenues of inquiry regarding other subversive nonstate actors (“NSAs”), for instance in the areas of transnational torts, human rights (“HR”) violations, and environmental damage caused by business entities. As discussed in Part V, recent developments surrounding the application of the Alien Tort Claims Act (“ATCA”) in the United States and the prospect of establishing a basis for universal civil jurisdiction further signal that no such solid basis ...


A Higher Authority: Canada’S Cannabis Legalization In The Context Of International Law, Antonia Eliason, Robert Howse Jan 2019

A Higher Authority: Canada’S Cannabis Legalization In The Context Of International Law, Antonia Eliason, Robert Howse

Michigan Journal of International Law

Part I of this Article provides an overview of some of the key terms and provisions of Canada’s Cannabis Act. Part II looks at the Cannabis Act in the context of the International Drug Conventions, examining how the various convention provisions might apply, looking first at the Single Convention and then at the 1988 Convention and how that convention fits with Canadian constitutional provisions. Part III focuses on the international human rights framework and how the Cannabis Act might be viewed as compatible with international human rights law even where incompatible with the International Drug Conventions. This Part also ...


The New York Convention: A Self-Executing Treaty, Gary B. Born Oct 2018

The New York Convention: A Self-Executing Treaty, Gary B. Born

Michigan Journal of International Law

The thesis of this Article is that uncertainty regarding the Convention’s status as a self-executing treaty of the United States is unwarranted and unfortunate. Instead, both the Convention’s provisions for recognition and enforcement of arbitration agreements (in Article II) and of arbitral awards (in Articles III, IV, V, and VI) should be regarded as self-executing and directly applicable in U.S. (and other national) courts. As discussed in detail below, this is because Article II establishes mandatory, complete, and comprehensive substantive rules, directed specifically to national courts, for the recognition and enforcement of international arbitration agreements. Likewise, the ...


Space, The Final Frontier Of Enterprise: Incentivizing Asteroid Mining Under A Revised International Framework, Jack Heise Oct 2018

Space, The Final Frontier Of Enterprise: Incentivizing Asteroid Mining Under A Revised International Framework, Jack Heise

Michigan Journal of International Law

This Note argues that the Outer Space Treaty (the “OST”) should be modified to provide explicit permission for private entities to engage in asteroid mining while maintaining the principles of international peace and cooperation that the treaty espouses as the core of the framework governing outer space. Part I explores the current state of asteroid mining with reference to the current objectives of companies conducting missions in this realm. Part II examines the OST as applied to the enterprise of asteroid mining by private companies. Part III considers the benefits and drawbacks of various regulatory schemes to govern asteroid mining ...


Tiny Things With A Huge Impact: The International Regulation Of Nanomaterials, Dario Picecchi May 2018

Tiny Things With A Huge Impact: The International Regulation Of Nanomaterials, Dario Picecchi

Michigan Journal of Environmental & Administrative Law

Mounting evidence demonstrates that nanotechnology and nanomaterials impose severe environmental risks. To minimize these risks, the usage and handling of certain nanomaterials could be addressed under existing treaties such as the Rotterdam Convention, the Stockholm Convention, and the Basel Convention. However, even if existing treaties govern the handling of certain nanomaterials, no treaty effectively regulates all the specific challenges that nanomaterials pose to the global environment. Consequently, a completely new regulatory instrument is required. An international organization could take responsibility for developing and promoting such a nanospecific international legal framework. By incorporating the precautionary principle, a technology transfer, research cooperation ...


The Michigan Guidelines On Refugee Freedom Of Movement, Colloquium On Challenges In International Refugee Law Jan 2018

The Michigan Guidelines On Refugee Freedom Of Movement, Colloquium On Challenges In International Refugee Law

Michigan Journal of International Law

Despite the clear legal foundation of refugee freedom of movement at international law, states are also committed to the deterrence of human smuggling and trafficking, to the maintenance of effective general border controls, to safeguarding the critical interests of receiving communities, and to effectuating safe and dignified repatriation when refugee status comes to an end. Legal obligations to respect refugee freedom of movement therefore co-exist with, and must be reconciled to, other important commitments.


The International Right To Health Care: A Legal And Moral Defense, Michael Da Silva Jan 2018

The International Right To Health Care: A Legal And Moral Defense, Michael Da Silva

Michigan Journal of International Law

In the following, I outline the case against the international right to health care and explain why recognition of such a right is still necessary. The argument is explicitly limited to international human rights law and is primarily descriptive in nature, but I go on to explain the moral reasons to accept this account. Both the positive law and moral reasoning could be used in other health rights debates, but I do not attempt to make such claims here.

The structure of my work is as follows. I first outline three problems with recognizing an international right to health care ...


Special Feature: Eighth Colloquium On Challenges In International Refugee Law, James C. Hathaway Jan 2018

Special Feature: Eighth Colloquium On Challenges In International Refugee Law, James C. Hathaway

Michigan Journal of International Law

It is our hope that, as in the case of earlier Michigan Guidelines on the International Protection of Refugees, these unanimously agreed standards will inspire a thoughtful and principled debate among scholars, officials, and judicial and other refugee law decision-makers committed to the legally accurate and contextually sound application of international refugee law norms.


Refugees And The Right To Freedom Of Movement: From Flight To Return, Marjoleine Zieck Jan 2018

Refugees And The Right To Freedom Of Movement: From Flight To Return, Marjoleine Zieck

Michigan Journal of International Law

This background study focuses on the right to freedom of movement of refugees. It reviews the law pertaining to this freedom from the perspective of the spatial journey of refugees. This focus on the law means that extralegal considerations will not be taken into consideration. The analysis will not proceed from any perceived need for limits that should be accepted as “a product of realism about the strains that migration, especially high-volume migration or sudden influxes, can bring to a society.”


Contemporary Practice Of The United States Relating To International Law, Kristina Daugirdas, Julian Davis Mortenson Oct 2017

Contemporary Practice Of The United States Relating To International Law, Kristina Daugirdas, Julian Davis Mortenson

Articles

In this section: Congress Enacts Sanctions Legislation Targeting Russia • United States and Qatar Sign Memorandum of Understanding over Terrorism Financing • Trump Reverses Certain Steps Toward Normalizing Relations with Cuba • United States Announces Plans to Withdraw from Paris Agreement on Climate Change • President Trump Issues Trade-Related Executive Orders and Memoranda • United States, Russia, and Jordan Sign Limited Ceasefire for Syria • Trump Administration Recertifies Iranian Compliance with JCPOA Notwithstanding Increasing Concern with Iranian Behavior


Reply On The Work Of International Law, Monica Hakimi Aug 2017

Reply On The Work Of International Law, Monica Hakimi

Articles

"In the Article, I distill and then criticize a prominent view about the role of international law in the global order. The view—what I call the “cooperation thesis”—is that international law serves to foster a particular kind of cooperation, specifically to help the participants achieve their common aims and curb their disputes. Lawyers who subscribe to this view of course appreciate that international law is, like all law, often contentious in operation. But they posit that, unless such conflict is overcome, it detracts from cooperation and evinces the limits of international law. That view is wrong. It incorrectly ...


Contemporary Practice Of The United States Relating To International Law, Kristina Daugirdas, Julian Davis Mortenson Jul 2017

Contemporary Practice Of The United States Relating To International Law, Kristina Daugirdas, Julian Davis Mortenson

Articles

In this section: • Trump Administration Takes Steps to Implement Bilateral Agreement with Australia Regarding Refugees • Trump Administration Criticizes NATO Members for Failing to Meet Defense Spending Guideline; United States Joins Other NATO Members in Supporting Montenegro’s Membership in the Organization • President Trump Issues Executive Orders Suspending Refugee Program and Barring Entry by Individuals from Specified Countries • Trump Administration Maintains Nuclear Deal with Iran, Despite Persistent Skepticism • United States Strikes Syrian Government Airbase in Response to Chemical Weapons Attacks by Syrian Forces; Two Additional Strikes on Syrian Government Forces Justified by Defense of Troops Rationale • United States Alleges Russia Continues ...


Making Treaty Implementation More Like Statutory Implementation, Jean Galbraith Jun 2017

Making Treaty Implementation More Like Statutory Implementation, Jean Galbraith

Michigan Law Review

Both statutes and treaties are the “supreme law of the land,” and yet quite different practices have developed with respect to their implementation. For statutes, all three branches have embraced the development of administrative law, which allows the executive branch to translate broad statutory directives into enforceable obligations. But for treaties, there is a far more cumbersome process. Unless a treaty provision contains language that courts interpret to be directly enforceable, they will deem it to require implementing legislation from Congress. This Article explores and challenges the perplexing disparity between the administration of statutes and treaties. It shows that the ...


Reliability Of Expert Evidence In International Disputes, Matthew W. Swinehart Jan 2017

Reliability Of Expert Evidence In International Disputes, Matthew W. Swinehart

Michigan Journal of International Law

Part I of this article traces the historical trends in the use of expert evidence in international disputes, from the scattered reliance on experts in the nineteenth and early twentieth centuries to the ubiquity of experts in modern disputes. With that perspective, Part II examines how decision makers have attempted to ensure reliability of the expert evidence that is flooding the evidentiary records of international disputes, while Part III outlines the many problems that still remain. Finally, Part IV proposes a non-exhaustive and nonbinding checklist of questions for analyzing the reliability of any type of expert evidence.


Contemporary Practice Of The United States Relating To International Law, Daugirdas Kristina, Julian Davis Mortenson Jan 2017

Contemporary Practice Of The United States Relating To International Law, Daugirdas Kristina, Julian Davis Mortenson

Articles

In this section: • Congress Overrides Obama’s Veto to Pass Justice Against Sponsors of Terrorism Act • U.S. Federal Court of Appeals Upholds United Nations’ Immunity in Case Related to Cholera in Haiti • U.S.-Russian Agreements on Syria Break Down as the Syrian Conflict Continues • Russia Suspends Bilateral Agreement with United States on Disposal of Weapons-Grade Plutonium • The United States Makes Payment to Family of Italian Killed in CIA Air Strike • United States Ratifies Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance


How And Why International Law Binds International Organizations, Kristina Daugirdas Nov 2016

How And Why International Law Binds International Organizations, Kristina Daugirdas

Articles

For decades, controversy has dogged claims about whether and to what extent international law binds international organizations (“IOs”) like the United Nations and the International Monetary Fund. The question has important consequences for humanitarian law, economic rights, and environmental protection. In this Article, I aim to resolve the controversy by supplying a theory about when and how international law binds IOs. I conclude that international law binds IOs to the same degree that it binds states. That is, IOs are not more extensively or more readily bound; nor are they less extensively or less readily bound. This means that IOs ...


Comma But Differentiated Responsibilities: Punctuation And 30 Other Ways Negotiators Have Resolved Issues In The International Climate Change Regime, Susan Biniaz Oct 2016

Comma But Differentiated Responsibilities: Punctuation And 30 Other Ways Negotiators Have Resolved Issues In The International Climate Change Regime, Susan Biniaz

Michigan Journal of Environmental & Administrative Law

International climate change negotiations have a long history of being contentious, and much has been written about the grand trade-offs that have allowed countries to reach agreement. Issues have often involved, for example, the level of ambition, differentiated treatment of Parties, and various forms of financial assistance to developing countries.

Lesser known are the smaller, largely language-based tools negotiators have used to resolve differences, sometimes finding a solution as subtle as a shift in the placement of a comma. These tools have operated in different ways. Some, such as deliberate imprecision or postponement, have “resolved” an issue by sidestepping it ...


Bringing Pacific Bluefin Tuna Back From The Brink: Ensuring The Submission Of Operational Data To The Western And Central Pacific Fisheries Commission, Chris Wold, Mitsuhiko Takahashi, Siwon Park, Viv Fernandes, Sarah Butler Oct 2016

Bringing Pacific Bluefin Tuna Back From The Brink: Ensuring The Submission Of Operational Data To The Western And Central Pacific Fisheries Commission, Chris Wold, Mitsuhiko Takahashi, Siwon Park, Viv Fernandes, Sarah Butler

Michigan Journal of Environmental & Administrative Law

The Commission of the Convention on the Conservation and Management of Highly Migratory Fish Stocks in the Western Pacific Ocean (WCPFC) manages fish stocks of significant financial and ecological value across an area of the Pacific Ocean comprising 20% of Earth. WCPFC members, however, have disagreed sharply over management measures for tuna, sharks, and other species, in part because some WCPFC members have refused to provide the WCPFC with vessel-specific data, known as operational data, which is needed to manage the stocks sustainably. Despite a legal requirement to submit operational data to the WCPFC, these members, including Japan and Korea ...


Oil Under Troubled Waters?: Some Legal Aspects Of The Boundary Dispute Between Malawi And Tanzania Over Lake Malawi, Tiyanjana Maluwa Apr 2016

Oil Under Troubled Waters?: Some Legal Aspects Of The Boundary Dispute Between Malawi And Tanzania Over Lake Malawi, Tiyanjana Maluwa

Michigan Journal of International Law

This article examines the legal aspects of the respective claims by the two claimants to the northeastern stretches of the lake: to the eastern shoreline by Malawi and to the median line by Tanzania. Maluwa proceeds as follows. First, the Article sketches out the historical and political background of the dispute and examines some preliminary legal issues in Part I. Part II discusses the legal significance of boundaries, state succession to boundary treaties, and the relevance of post-colonial African state practice in this respect. A central aspect of this practice is the adoption by African states of the principle of ...


Custom's Method And Process: Lessons From Humanitarian Law, Monica Hakimi Mar 2016

Custom's Method And Process: Lessons From Humanitarian Law, Monica Hakimi

Book Chapters

A central question in the literature on customary international law (CIL) goes to method: what is the proper method for "finding" CIL - that is, for determining that particular norms qualify as ClL? The traditional method is to identify a widespread state practice, plus evidence that states believe that the practice reflects the law (opinio juris). That method has long been criticized as incoherent, unworkable, and out of touch with modern sensibilities. Thus, much of the CIL literature addresses its perceived problems. The principal goals of this literature are to help resolve whether norms that are claimed to be CIL are ...


The Effect Of The 1886 Berne Convention On The U.S. Copyright System's Treatment Of Moral Rights And Copyright Term, And Where That Leaves Us Today, Samuel Jacobs Jan 2016

The Effect Of The 1886 Berne Convention On The U.S. Copyright System's Treatment Of Moral Rights And Copyright Term, And Where That Leaves Us Today, Samuel Jacobs

Michigan Telecommunications & Technology Law Review

The 1886 Berne Convention was the most influential copyright related treaty for over a century, and provided important minimum substantive protections for authors. Key provisions included the establishment of the principle of National Treatment, the abolishment of formalities in order to receive copyright protection, a required copyright term of life of the author plus fifty years, and most offensive to the U.S. copyright system, the mandate that signatories provide authors non-economic moral rights. Despite the international importance and widespread acceptance of the Berne Convention, the U.S. did not join the Convention for over one hundred years, making it ...


Customary International Law: An Instrument Choice Perspective, Laurence R. Helfer, Ingrid B. Wuerth Jan 2016

Customary International Law: An Instrument Choice Perspective, Laurence R. Helfer, Ingrid B. Wuerth

Michigan Journal of International Law

This Article proceeds as follows. Part II begins by considering custom’s design features, which the authors distinguish from the canonical elements of custom (state practice and opinio juris) and the individual doctrines associated with CIL. Specifically, they contend that, as an ideal-type, custom is non-negotiated, unwritten, and universal, three characteristics that distinguish CIL from both treaties and soft law, which are almost always negotiated, written, and rarely universal either in formation or application. These design features help to explain some of custom’s peculiar doctrinal characteristics, and they cut across the doctrinal divide which is said to distinguish “traditional ...


Rescuing Policy And Terror Victims: A Concerted Approach To The Ransom Dilemma, C. Elizabeth Bundy Jan 2016

Rescuing Policy And Terror Victims: A Concerted Approach To The Ransom Dilemma, C. Elizabeth Bundy

Michigan Journal of International Law

Part I of this Note will analyze the current framework governing hostage situations to determine the permissibility of ransom payments under international law. Part II will examine the two dominant positions that have developed among states and identify the justifications and shortcomings of each. Part III will conclude, firstly, that for states to develop a multilateral approach to hostage situations, they must take the lead within their respective domestic spheres and, secondly, that the option to negotiate for ransomed release should be preserved as an essential tool for confronting terrorist organizations.


Contemporary Practice Of The United States Relating To International Law, Kristina Daugirdas, Julian Davis Mortenson Jan 2016

Contemporary Practice Of The United States Relating To International Law, Kristina Daugirdas, Julian Davis Mortenson

Articles

In this section: • United States and France Sign Agreement to Compensate Holocaust Victims • United States Conducts Naval Operation Within Twelve Nautical Miles of Spratly Islands in the South China Sea, Prompting Protests from China • United States Pursues Bilateral and Multilateral Initiatives in and Around the Arctic


Contemporary Practice Of The United States Relating To International Law, Kristina Daugirdas, Julian Davis Mortenson Jan 2016

Contemporary Practice Of The United States Relating To International Law, Kristina Daugirdas, Julian Davis Mortenson

Articles

In this section: • U.S. Supreme Court Upholds Law Facilitating Compensation for Victims of Iranian Terrorism • Russia Argues Enhanced Military Presence in Europe Violates NATO-Russia Agreement; United States Criticizes Russian Military Maneuvers over the Baltic Sea as Inconsistent with Bilateral Treaty Governing Incidents at Sea • U.S. Secretary of State Determines ISIL Is Responsible for Genocide • United States Blocks Reappointment of WTO Appellate Body Member • U.S. Department of Defense Releases Report of Investigation Finding That October 2015 Air Strike on Doctors Without Borders Hospital in Kunduz, Afghanistan, Was Not a War Crime • United States Expands Air Strikes Against al-Shabaab ...


From Incentive To Commodity To Asset: How International Law Is Reconceptualizing Intellectual Property, Rochelle Dreyfuss, Susy Frankel Dec 2015

From Incentive To Commodity To Asset: How International Law Is Reconceptualizing Intellectual Property, Rochelle Dreyfuss, Susy Frankel

Michigan Journal of International Law

The intellectual property landscape is changing. As Jerry Reichman once observed, intellectual property rights were islands in a sea of the public domain until domestic laws expanded to include such “innovations” as business methods, software, scents, and sounds and turned the public domain into a pond surrounded by a continent of rights. Reichman spoke towards the end of the 20th century, and whatever problems accompanied this change, in truth (to paraphrase Voltaire’s view of the Holy Roman Empire), the concept of “intellectual property rights” was predominantly about neither “property” nor “rights” (nor was it always “intellectual”). Rather, copyright, patent ...


Congress's International Legal Discourse, Kevin L. Cope May 2015

Congress's International Legal Discourse, Kevin L. Cope

Michigan Law Review

Despite Congress’s important role in enforcing U.S. international law obligations, the relevant existing literature largely ignores the branch. This omission may stem partly from the belief, common among both academics and lawyers, that Congress is generally unsympathetic to or ignorant of international law. Under this conventional wisdom, members of Congress would rarely if ever imply that international law norms should impact otherwise desirable domestic legislation. Using an original dataset comprising thirty years of legislative histories of pertinent federal statutes, this Article questions and tests that view. The evidence refutes the conventional wisdom. It shows instead that, in legislative ...


Contemporary Practice Of The Untied States Relating To International Law, Kristina Daugirdas, Julian Davis Mortenson Jan 2015

Contemporary Practice Of The Untied States Relating To International Law, Kristina Daugirdas, Julian Davis Mortenson

Articles

In this section: • Iran Nuclear Framework Agreement Reached; Congress Seeks to Influence Negotiation • United States Lifts Some Cuba Restrictions and Explores the Possibility of Normalizing Relations • United States Responds to Alleged North Korean Cyber Attack on Sony Pictures Entertainment • Senate Select Committee on Intelligence Releases Executive Summary of Its Study of CIA’s Detention and Interrogation Program • President Obama Seeks Statutory Authorization for the Use of Military Force Against ISIL


Defensive Force Against Non-State Actors: The State Of Play, Monica Hakimi Jan 2015

Defensive Force Against Non-State Actors: The State Of Play, Monica Hakimi

Articles

This article assesses the implications of the current Syria situation for the international law on the use of defensive force against non-State actors. The law in this area is highly unsettled, with multiple legal positions in play. After mapping the legal terrain, the article shows that the Syria situation accentuates three preexisting trends. First, the claim that international law absolutely prohibits the use of defensive force against non-State actors is increasingly difficult to sustain. States, on the whole, have supported the operation against the so-called Islamic State in Syria. Second, States still have not coalesced around a legal standard on ...