Law Commons^™

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. …

Moral Disarmament: Reviving A Legacy Of The Great War, James D. Fry, Saroj Nair

Michigan Journal of International Law

In short, this Article examines the concept of moral disarmament using a broad-spectrum definition of humanity rather than the traditional IHL perspective. Rather than referring to human rights that are impacted by armaments, this Article looks at methods through which human initiative can create a society that truly hungers for disarmament. In other words, this Article points out that the extent of change that society can bring about through education, intellectual cooperation, peace initiatives, international affairs awareness, and intercultural communication can be reflected in the economic growth, social growth, and development of states. The aim is to help the reader …

Access To Justice In The United Nations Human Rights Committee, Vera Shikhelman

Michigan Journal of International Law

This Article has two main purposes. The first is to describe and evaluate empirically the right of individuals to access the HRC under the OP in light of the special goals of this procedure as perceived by the different stakeholders. The second is to recommend ways to improve individuals’ access to the HRC and thereby to international justice in general. In order to address the first question, the Article uses a mixed-methods approach—a combination of quantitative and qualitative research methods.

Piracy And Due Process, Andrew Kent

Michigan Journal of International Law

This article explores in depth the law of nations, English domestic law, and English government practice from the late medieval period through the eighteenth century, and the U.S. constitutional law and government practice during the Founding and antebellum periods. I conclude that Chapman’s claims about due process and piracy suppression are incorrect. Both Parliament and the U.S. Congress; both the Crown and its counselors and U.S Presidents and their advisers; both the Royal Navy and the U.S. Navy; and commentators both English and American believed that (1) pirates on the high seas could lawfully be subject to extrajudicial killing, but …

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 history and purposes …

Justice In Syria: Individual Criminal Liability For Highest Officials In The Assad Regime, Seema Kassab

Michigan Journal of International Law

Seven years have passed since revolution broke out in Syria in March of 2011. During those six years, hundreds of thousands of Syrians lost their lives, millions of Syrians were internally displaced or left the country seeking refuge, and a beautiful and diverse country was hijacked and terrorized by civil war. Every day in Syria, people are detained, tortured, raped, and killed. Attacks on homes, hospitals, markets, and schools are common occurrences. At this stage of the conflict, there is little doubt that it is the most horrific and dire humanitarian crisis since World War II. The conflict began as …

International Courts Improve Public Deliberation, Shai Dothan

Michigan Journal of International Law

The paper starts with the effects of international courts on the broader public and narrows down to their influence on a small elite of lawyers. Part I suggests that international courts captivate the public imagination, allowing citizens to articulate their rights. Part II demonstrates how governments, parliaments, and national courts around the world interact with international courts in ways that improve public deliberation. Part III studies the global elite of lawyers that work in conjunction with international courts to shape policy. Part IV concludes by arguing that the dialogue fostered between international courts and democratic bodies does, in fact, lead …

A Global Treaty Override? The New Oecd Multilateral Tax Instrument And Its Limits, Reuven S. Avi-Yonah, Haiyan Xu

Michigan Journal of International Law

This article will proceed as follows. Section 2 summarizes the main provisions of the MLI. Section 3 discusses the purpose of tax treaties in the twenty-first century, because it can be argued that they are less necessary under conditions of tax competition. Section 4 raises the question whether tax treaties can be improved short of a full-fledged multilateral tax treaty by inserting a most favored nation (MFN) provision similar to those found in bilateral investment treaties. Such an MFN provision operates over time to create a de facto multilateral treaty without the negotiation of one. Section 5 concludes this article.

The Michigan Guidelines On Refugee Freedom Of Movement

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

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. …

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 …

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

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.”

The Aba Rule Of Law Initiative Celebrating 25 Years Of Global Initiatives, M. Margaret Mckeown

Michigan Journal of International Law

Relying on extensive reports, program documentation, and interviews with important actors in the rule of law movement, this article will explore how one key player in the international-development field—the ABA—has furthered rule of law values through its global programs. The first half of the article surveys the ABA’s involvement in rule of law initiatives. Part I explores the origins of the ABA’s work in this field, which date back to the organization’s founding and took shape after the demise of the former Soviet Union. Part II surveys the expansion of the ABA’s programs beyond Eastern Europe to other regions—a growth …

Targeting The Targeted Killings Case - International Lawmaking In Domestic Contexts, Yahli Shereshevsky

Michigan Journal of International Law

The targeting of non-state armed groups members is perhaps the most debated legal issue in the law of contemporary armed conflicts between states and non-state actors. The 2006 Targeted Killings case of the Israeli Supreme Court (ISC) is a key reference point in this debate. Recently, without much scholarly or public attention, the government of Israel, in its report on the summer 2014 conflict in Gaza (the 2014 Gaza Conflict Report), dramatically diverged from the Targeted Killings case’s definition of legitimate targets in asymmetric conflicts. The Targeted Killings case held a conduct or functional membership-based approach to targeting. This approach …

International Judicial Practices: Opening The "Black Box" Of International Courts, Jeffrey L. Dunoff, Mark A. Pollack

Michigan Journal of International Law

This paper utilizes “practice theory” to identify and analyze the everyday practices of international judges, with particular focus on practices associated with judicial decision-making. Examining judicial practices illuminates a wide range of otherwise hidden activities that shape international judicial opinions; provides a pathway toward uncovering the subjective understandings that international judges attach to their own behaviors; and reveals underlying causal processes and mechanisms that influence tribunal decisions. By opening the “black box” of international courts, the practice turn permits us to shed light on their inner workings, and thereby enrich our understanding of these increasingly important bodies.