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Articles 1 - 30 of 38
Full-Text Articles in Public Law and Legal Theory
A Path To Transformation: Asking “The Woman Question” In International Law, Cochav Elkayam-Levy
A Path To Transformation: Asking “The Woman Question” In International Law, Cochav Elkayam-Levy
Michigan Journal of International Law
Methods matter, and the discussion over feminist methods in international law is an important one. As Kathrine Bartlett famously noted, “thinking about method is empowering.” It makes us more aware of the nature of what we do and what we aim to improve in the law. Consequently, we can act more effectively when we examine legal structures and do it with a stronger sense of commitment towards our feminist work. Methods are also the fundamental means by which we produce “valid knowing.” The discussion of feminist methods in international law is one that engages with the combination of rules and …
A Theory Of Constructive Interpretation For Customary International Law Identification, Nadia Banteka
A Theory Of Constructive Interpretation For Customary International Law Identification, Nadia Banteka
Michigan Journal of International Law
Scholars and judicial practice have long debated the nature of customary international law (“CIL”) as a source of international law, including its normative identification. Existing approaches to CIL identification largely follow the methods of induction and deduction. However, these methods are only two ends of a spectrum, and international law has yet to engage systematically with other methodological approaches that lay within this spectrum. This Article introduces a mid-spectrum approach by applying the theory of constructive interpretation to CIL identification. The Article introduces the guiding principles of constructive interpretation, examines the process of constructive interpretation in the abstract, and applies …
Minimalism About Residence And Source, Wei Cui
Minimalism About Residence And Source, Wei Cui
Michigan Journal of International Law
In this Article, I relate the discomfort with fundamental principles in taxing individuals’ worldwide income to a problem that has attracted greater attention in recent years: the assignment of geographical sources to income. I suggest that there is substantial similarity between critiques of residence rules (of which critiques of citizenship-based taxation are examples) and critiques of source rules. However, I argue that problematic residence and source rules are only symptoms, not causes, of unsatisfactory conceptual paradigms in international taxation. Many scholars portray source and residence rules as inadequate means for achieving purportedly given normative objectives in the age of intense …
Customary International Law: An Instrument Choice Perspective, Laurence R. Helfer, Ingrid B. Wuerth
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” and …
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 …
Shared Responsibility And The International Labour Organization, Yossi Dahan, Hanna Lerner, Faina Milman-Sivan
Shared Responsibility And The International Labour Organization, Yossi Dahan, Hanna Lerner, Faina Milman-Sivan
Michigan Journal of International Law
How should the international labor regime be reformed in order to guarantee all workers around the world minimum labor standards? This is the central question we address in this Article. It has been weighed and discussed by social scientists, legal scholars, and philosophers, who analyze it from various economic, political, and legal perspectives. Yet interestingly, the literature in this field has been, by and large, characterized by a sharp disciplinary divide: on the one hand, labor law scholars typically address the issue of international labor standards from a detailed practical perspective, defining the problems in terms of enforcement, efficacy, or …
Shared Responsibility In International Law: A Conceptual Framework, Andre Nollkaemper, Dov Jacobs
Shared Responsibility In International Law: A Conceptual Framework, Andre Nollkaemper, Dov Jacobs
Michigan Journal of International Law
In this Article we explore the phenomenon of shared international responsibility among multiple actors that contribute to harmful outcomes that international law seeks to prevent. We examine the foundations and manifestations of shared responsibility, explain why international law has had difficulty in grasping its complexity, and set forth a conceptual framework that allows us to better understand and study the phenomenon. Such a framework provides a basis for further development of principles of international law that correspond to the needs of an era characterized by joint and coordinated, rather than independent, action.
Conceptions Of Civil Society In International Lawmaking And Implementation: A Theoretical Framework, Laura Pedraza-Farina
Conceptions Of Civil Society In International Lawmaking And Implementation: A Theoretical Framework, Laura Pedraza-Farina
Michigan Journal of International Law
The last two decades have seen an unprecedented explosion in the number of civil society organizations seeking to influence national and international policy making and implementation. Global leaders, activists, scholars, and policy experts have increasingly called for the inclusion of civil society in international governance and in the national implementation of international commitments. Most recently, the wave of civil uprisings that swept the Middle East and North Africa has put fostering civil society participation high on the agenda of national governments and international organizations. Indeed, most international organizations have devised mechanisms to engage with civil society and regard civil society …
Toward A Unified Theory Of Professional Ethics And Human Rights, Jonathan H. Marks
Toward A Unified Theory Of Professional Ethics And Human Rights, Jonathan H. Marks
Michigan Journal of International Law
This Article offers a novel account of the relationship between the ethical obligations of professionals and international human rights law and practice. The account is motivated by the role that professionals played in the Bush administration's "war on terror"-in particular, the global detention and interrogation regimes that incarcerated tens of thousands of detainees, and abused many of them. In the most extreme cases, professionals may have committed serious international crimes rendering them liable to criminal prosecution in foreign courts. Serious concerns have also been raised about the ethics of professionals' conduct. Psychologists were the principal architects of the aggressive detention …
Property Rights & The Demands Of Transformation, Bernadette Atuahene
Property Rights & The Demands Of Transformation, Bernadette Atuahene
Michigan Journal of International Law
Countries like those in Southern Africa will never emerge from the indomitable shadow of inequity and the serious threat of backlash unless real property is redistributed; but, the conception of property these countries explicitly or implicitly adopt can adversely affect their ability to redistribute. Under the classical conception of real property (the classical conception), redistribution is difficult because title deed holders are a privileged group who are given nearly absolute property protection. Strangely, the classical conception is ascendant in many transitional states where redistribution is essential. The specific question this Article addresses is: for states where past property dispossession has …
Institutional Alliances And Derivative Legitimacy, Claire R. Kelly
Institutional Alliances And Derivative Legitimacy, Claire R. Kelly
Michigan Journal of International Law
Part I of this Article describes global lawmaking and the legitimacy challenge. It provides a typology of IOs that develop norms. It explains that legitimacy is a subjective belief, but it provides objective paradigms for assessing legitimacy claims. It demonstrates how pursuing legitimacy according to one set of criteria can sacrifice legitimacy claims under another. It also examines the competition among IOs, the push for democratic norms, and the resulting need for stronger legitimacy claims. Part II explains linkage and accommodation and gives specific examples of where these phenomena work to garner more legitimacy for specific organizations and the soft …
Two Paradigms Of Jurisdiction, Ralf Michaels
Two Paradigms Of Jurisdiction, Ralf Michaels
Michigan Journal of International Law
Globalization causes convergence of legal orders. Or so it is argued. Law and economics scholars predict that legal orders will move towards the same efficient end state. They argue that the requirements of globalization will pressure legal orders to converge on the level of economic efficiency, because regulatory competition between legal orders makes it impossible for individual legal systems to maintain suboptimal solutions. Many comparative lawyers predict a similar convergence. In particular traditional functionalist comparatists have long held that unification of law was both desirable and unavoidable. Their basic argument is based on functional equivalence and can be summarized as …
Saving Customary International Law, Andrew T. Guzman
Saving Customary International Law, Andrew T. Guzman
Michigan Journal of International Law
This Article offers a theory of CIL-one that provides a firm and modem theoretical foundation for the analysis of custom. Though this is not the first article to propose a view of CIL through a rational choice lens, it is the first to map out a general theory of CIL based on such a model.
Methods Of Power For Development: Weapons Of The Weak, Weapons Of The Strong, John Braithwaite
Methods Of Power For Development: Weapons Of The Weak, Weapons Of The Strong, John Braithwaite
Michigan Journal of International Law
Peter Drahos and John Braithwaite conducted a study during the 1990s on global business regulation, interviewing more than five hundred key players in approximately twenty globalizing business regulatory regimes. Results from that study are used in this paper to inform the identification of seven elements of American power in global governance. The paper then poses the question whether those elements can be acquired by developing countries.
The State And Globalization: Denationalized Participation, Saskia Sassen
The State And Globalization: Denationalized Participation, Saskia Sassen
Michigan Journal of International Law
The effort in this paper is to recover the ways in which the state participates in governing the global economy in a context increasingly dominated by deregulation, privatization, and the growing authority of non-state actors. A key organizing proposition, derived from my previous work on global cities' is the embeddedness of much of globalization in national territory, that is to say, in a geographic terrain that has been encased in an elaborate set of national laws and administrative capacities. The embeddedness of the global requires at least a partial lifting of these national encasements and hence signals a necessary participation …
The Essentially Contested Nature Of The Concept Of Sovereignty: Implications For The Exercise By International Organizations Of Delegated Powers Of Government, Dan Sarooshi
Michigan Journal of International Law
The relationship between the concept of sovereignty and international organizations is often posed as being problematic. The establishment and subsequent operations of international organizations are often characterized as involving the 'loss' of a State's sovereignty and as such have been viewed with suspicion, if not antagonism, by certain domestic commentators. The response in legal journals by supporters of international organizations has been too narrow, technical, and often simply reaffirms the fears of the domestic commentators by focusing on how the organization's exercise of powers constrains the State in the exercise of its powers. The approach adopted herein is different. It …
Pros And Cons Ensuing From Fragmentation Of International Law, Gerhard Hafner
Pros And Cons Ensuing From Fragmentation Of International Law, Gerhard Hafner
Michigan Journal of International Law
The system of international law has become increasingly fragmented, particularly since the end of the Cold War. This paper intends to present the main features of this development and its implications.
International Legal Pluralism, William W. Burke-White
International Legal Pluralism, William W. Burke-White
Michigan Journal of International Law
This symposium has sought to examine the fragmentation of the international legal system. Such a task presupposes that international law is, in fact, undergoing some form of fragmentation. A range of recent scholarship has described this so-called fragmentation in various ways and generally considered it a negative development, a threat to the legal system as we know it. This commentary challenges both these assumptions by suggesting that international law is not fragmenting, but rather is being transformed into a pluralist system. Instead of being undermined by fragmentation, the rules, the institutions, and practices of the international legal order can be …
Regime-Collisions: The Vain Search For Legal Unity In The Fragmentation Of Global Law, Andreas Fischer-Lescano, Gunther Teubner
Regime-Collisions: The Vain Search For Legal Unity In The Fragmentation Of Global Law, Andreas Fischer-Lescano, Gunther Teubner
Michigan Journal of International Law
Predictions of future events tend to be a rarity within the social sciences. It is an even more rare occurrence when predicted events come to pass. Niklas Luhmann's prediction on the future of global law is a memorable exception. In 1971, while theorizing on the concept of world society, Luhmann allowed himself the "speculative hypothesis" that global law would experience a radical fragmentation, not along territorial, but along social sectoral lines. The reason for this would be a transformation from normative (politics, morality, law) to cognitive expectations (economy, science, technology); a transformation that would be effected during the transition from …
Commentary To Andreas Fischer- Lescano & Gunther Teubner. The Legitimacy Of International Law And The Role Of The State, Andreas L. Paulus
Commentary To Andreas Fischer- Lescano & Gunther Teubner. The Legitimacy Of International Law And The Role Of The State, Andreas L. Paulus
Michigan Journal of International Law
It will come as a surprise to many readers that Professor Teubner presented their fascinating contribution on regime collision to the Michigan Journal of International Law's Symposium on a panel devoted to "the Role of the State in International Law." Indeed, one could not imagine better devil's advocates than Professor Teubner and Dr. Andreas Fischer-Lescano. They propose a radical break with a concept of international law and order based on the autonomous will of Nation-States. Accordingly, legal regulation does not only, if at all, emanate from Nation-States, but from a panoply of other public and, mostly, private actors. Thus, the …
Reply To Andreas L. Paulus Consensus As Fiction Of Global Law, Andreas Fischer-Lescano, Gunther Teubner
Reply To Andreas L. Paulus Consensus As Fiction Of Global Law, Andreas Fischer-Lescano, Gunther Teubner
Michigan Journal of International Law
Andreas Paulus reminds us correctly that narratives "of a world of sovereign states loosely cooperating in 'coalitions of the willing' no longer tell the whole story." One of the achievements of the 20th century has been the insertion of a vertical dimension within horizontal international law; a dimension created by the ICJ's Traction decision and the Vienna Convention of the Law of Treaties, and within which we can observe "obligations arising for states without or against their will." Any narrative that characterizes these legal norms as a simple product of interstate consensus is particularly thin if analysis focuses upon the …
(Dis)Embedded Women, Rhoda E. Howard-Hassmann
(Dis)Embedded Women, Rhoda E. Howard-Hassmann
Michigan Journal of International Law
The position argued in this Article is that women's rights are individual rights. To explain this position, the Article will progress along the following arguments: 1) The dichotomy between Western individualism and non-Western collectivism is false. 2) Much of the debate regarding the role of women and women's rights confuses interest and identity. 3) Women do not necessarily constitute a social group. 4) "Women's" rights are actually universal human rights: they pertain mostly to women, but also to men. 5) The debate about whether women are a social group is rooted in part in differing conceptions of women's embeddedness in …
The Cedaw As A Collective Approach To Women's Rights, Brad R. Roth
The Cedaw As A Collective Approach To Women's Rights, Brad R. Roth
Michigan Journal of International Law
This Article will identify the individualist paradigm with the main current of contemporary liberal-individualist political thought, and more specifically with the approach to women's rights reflected in the International Covenant on Civil and Political Rights (ICCPR), which can be read most straightforwardly as reflecting a liberal-individualist conception of how the individual, society, and the State interrelate. This approach, dominant in the international human rights system as well as in the legal systems of some of the most influential States, can usefully be identified as that of the political Center.
The Value Vacuum: Self-Enforcing Regimes And The Dilution Of The Normative Feedback Loop, Claire R. Kelly
The Value Vacuum: Self-Enforcing Regimes And The Dilution Of The Normative Feedback Loop, Claire R. Kelly
Michigan Journal of International Law
This article proposes a modified constructivist theory, which links liberalism and constructivism through the normative feedback loop. Part I briefly explains traditional international relations theories such as realism, institutionalism, liberalism and constructivism. A modified constructivist perspective espouses the presence of two constants: (i) assertion of national preferences by constituents for whom the state acts as an agent in international relations, and (ii) social construction of state identities through interaction with other states in the international arena.
Game Theory And Customary International Law: A Response To Professors Goldsmith And Posner, Mark A. Chinen
Game Theory And Customary International Law: A Response To Professors Goldsmith And Posner, Mark A. Chinen
Michigan Journal of International Law
In a pair of recent articles, Professors Jack Goldsmith and Eric Posner have used game theoretic principles to challenge the positivist account of customary international law. Their writings join other early attempts to apply game theory to the international law sources. The author has two purposes in this Article. The first is to evaluate game theory's potential for yielding greater insight into customary international law and international law more generally. The second is to respond to the conclusions about customary international law drawn by Professors Goldsmith and Posner.
Further Thoughts On Customary International Law, Jack L. Goldsmith, Eric A. Posner
Further Thoughts On Customary International Law, Jack L. Goldsmith, Eric A. Posner
Michigan Journal of International Law
In two earlier articles, the tools of game theory were used to sketch a positive theoretical account of customary international law ("CIL"). This theory rejected as question-begging the usual explanations of CIL based on legality, morality, opinio juris, and related concepts. It was argued instead that CIL emerges from nations' pursuit of self-interested policies on the international stage. This approach helps explain many overlooked features of CIL, including how CIL originates and changes, why the content of CIL tracks the interest of powerful nations, and why nations change their views of CIL when their interests change. Finally, the practices …
Afterword, Mark A. Chinen
Afterword, Mark A. Chinen
Michigan Journal of International Law
The author prefaces the afterword in the following manner: “Professors Goldsmith and Posner have given an insightful reply to my Article. It has been a pleasure to engage in a discussion of these issues with respected colleagues via this exchange of writings, and I am grateful to the Journal for providing the opportunity to do so. Most of the positions I have taken are already adequately discussed in the body of the Article, and this afterword is not intended to summarize all of the arguments made there. However, I wanted to address some of the points Professors Goldsmith and Posner …
On The Frontier Of Procedural Innovation: Advance Pricing Agreements And The Struggle To Allocate Income For Cross Border Taxation, Diane M. Ring
On The Frontier Of Procedural Innovation: Advance Pricing Agreements And The Struggle To Allocate Income For Cross Border Taxation, Diane M. Ring
Michigan Journal of International Law
This paper outlines a recent procedural innovation in the tax area, the Advance Pricing Agreement Program ("APA" program), and evaluates its success. Such a case study can play a significant role in linking procedural innovation to the broader issues of administrative law theory and regulatory reform. For example, a working model such as the APA program, built on flexibility and creativity, may support administrative theories advocating discretion, flexibility, and experimentation. Conversely, some interest group theories of regulation (e.g., public choice theory), can prompt critical examination of reforms like APAs that exhibit limited openness to scrutiny. The APA program is an …
The Concept Of Compliance As A Function Of Competing Conceptions Of International Law, Benedict Kingsbury
The Concept Of Compliance As A Function Of Competing Conceptions Of International Law, Benedict Kingsbury
Michigan Journal of International Law
The purpose of this article is to challenge the tendency in the existing literature to view "compliance" simply as "correspondence of behavior with legal rules." This tendency is intelligibly based in a theoretical view that law can properly be defined and understood as a body of rules and expresses a practical concern to get on with the important task of producing empirical studies of compliance. The logical corollary is that a reasonable degree of conformity between these rules and actual behavior is necessary to an efficacious legal system, so that recurrent and widespread non-conformity with rules would usually call into …
State Successions And Statelessness: The Emerging Right To An Effective Nationality Under International Law, Jeffrey L. Blackman
State Successions And Statelessness: The Emerging Right To An Effective Nationality Under International Law, Jeffrey L. Blackman
Michigan Journal of International Law
This paper surveys some of the recent developments in international law relating to nationality and state succession, and suggests a growing convergence among several legal principles-specifically the principle of effective nationality, the individual right to a nationality and the corresponding duty of states to prevent statelessness, and the norm of nondiscrimination. At some point this convergence of such diverse areas of law as nationality, diplomatic protection, and human rights will impose positive duties on successor states with respect to their inherited populations: namely the duty to secure effective nationality for persons affected by state succession.