Law Commons^™

Pinochet And International Human Rights Litigation, Curtis A. Bradley, Jack L. Goldsmith

Michigan Law Review

The British House of Lords recently considered whether Augusto Pinochet was subject to arrest and possible extradition to Spain for alleged acts of torture and other egregious conduct carried out during his reign as Chile's head of state. The Law Lords held that a large majority of the charges against Pinochet were not proper grounds for extradition under British law. They also held, however, that Pinochet could potentially be extradited for alleged acts of torture committed after Britain's 1988 ratifica· tion of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. In reaching this latter conclusion, …

From Renaissance Poland To Poland's Renaissance, Daniel H. Cole

Michigan Law Review

Poland is located in Eastern Europe - the "other Europe" - which shares a continent, but seemingly little else, with Western Europe. Most histories of Europe, legal histories included, are actually histories of Western Europe only. The "euro-centrism" some scholars complain about is, more accurately, a "western eurocentrism." The eastern half of the continent is ignored like the embarrassing black sheep of the European family. Economic historians have described Eastern Europe as a "backward" place, where feudal and mercantilist economies persisted as Western European economies modernized and industrialized. In geopolitical terms, Eastern Europe has been characterized as a region of …

War Crimes And The Limits Of Legalism, Gary Jonathan Bass

Michigan Law Review

In April 1945, Sir John Simon, Britain's Lord Chancellor, drew up a memorandum that was the last gasp in the diplomatic struggle against Nuremberg. Under American pressure, and despite British objections, the Allies were poised to agree to put the Axis leadership on trial for war crimes. In the kind of magnificent understatement that the British government could sometimes inadvertently achieve, it was entitled "The Argument for Summary Process against Hitler & Co." The memorandum was a series of arguments to be used by the British delegation at the San Francisco conference in a last-ditch effort to win over the …

Awarding Costs And Attorneys' Fees In International Commercial Arbitrations, John Yukio Gotanda

Michigan Journal of International Law

This Article examines the practice of awarding costs and fees in international commercial arbitrations. Part I reviews the history of awarding costs and fees and the approaches that countries have adopted to resolve these claims. It concludes that an overwhelming number of countries permit such awards and follow the principle that the losing party should reimburse the prevailing party for expenses incurred in connection with the arbitration, including attorneys' fees. Part II examines the approaches used by international arbitral tribunals in resolving claims for costs and fees and finds that they are inadequate. Part Ill proposes a new model for …

The Michigan Guidelines On The Internal Protection Alternative

Michigan Journal of International Law

In many jurisdictions around the world, 'internal flight' or 'internal relocation' rules are increasingly relied upon to deny refugee status to persons at risk of persecution for a Convention reason in part, but not all, of their country of origin. In this, as in so many areas of refugee law and policy, the viability of a universal commitment to protection is challenged by divergence in state practice. These Guidelines seek to define the ways in which international refugee law should inform what the authors believe is more accurately described as the 'internal protection alternative.' It is the product of collective …

Grotius Repudiated: The American Objections To The International Criminal Court And The Commitment To International Law, Marcell David

Michigan Journal of International Law

This article analyzes the American objections to the Statute. Part I describes the historical precedents for a permanent international criminal court and the drafting process undertaken. Part I concludes with a summary of the sections of the Statute which are implicated by the American objections. These statutory sections include the Statute's definitions of crimes, the role of the Prosecutor, the Court's anticipated relationship with the U.N. Security Council, and the Court's anticipated jurisdiction over states not party to the Statute. Part II selects three recent or current instances where the United States has used armed force, and analyzes the claims …

International Refugee Law: The Michigan Guidelines On The Internal Protection Alternative, James C. Hathaway

Articles

International refugee law is designed only to provide a back-up source of protection to seriously at-risk persons. Its purpose is not to displace the primary rule that individuals should look to their state of nationality for protection, but simply to provide a safety net in the event a state fails to meet its basic protective responsibilities.1 As observed by the Supreme Court of Canada, "[t]he international community was meant to be a forum of second resort for the persecuted, a 'surrogate,' approachable upon the failure of local protection. The rationale upon which international refugee law rests is not simply the …

America's Apostasy, James C. Hathaway

Articles

It has often struck me that the prominence of the Restatement of the Foreign Relations Law of the United States epitomizes the plight of international law in this country. The title of this standard reference on international law does not even refer to international law, but instead to foreign relations law. That is, it is meant to set out the standards by which we may legitimately judge the conduct of others. The clear, if unintended, message is that the Restatement is not really a codification of laws that bind us. And indeed, it is explicitly not just a codification, but …

Exit And Voice In The Age Of Globalization, Eyal Benvenisti

Michigan Law Review

The "globalization" of commerce provides ever-growing opportunities for producers, employers, and service providers to shop the globe for more amenable jurisdictions. While they enjoy a "race to the top," an international "race to the bottom," spawned by decreasing relocation costs, threatens to compromise the achievements of the welfare state and lower standards of consumer protection. National governments, weakened by competition that entails leaner budgets, find it increasingly difficult to cooperate in the appropriation of crucial shared natural resources, seriously endangering these assets while damaging the environment. Not only does the growing global competition create both efficiency losses and social-welfare problems, …

Clear And Present Danger: Enforcing The International Ban On Biological And Chemical Weapons Through Sanctions, Use Of Force, And Criminalization, Michael P. Scharf

Michigan Journal of International Law

Currently there are two means of enforcing the international prohibition of chemical and biological weapons. First, the international community can induce compliance through imposition of sanctions, such as trade embargoes, freezing of assets and diplomatic isolation. Second, when sanctions fail, States can individually or collectively respond to the threat of chemical or biological weapons by using military force. After exploring the potential strengths and weaknesses of these approaches, this article examines the desirability of supplementing them with a third approach based on the criminal prosecution of persons responsible for the production, stockpiling, transfer, or use of chemical and biological weapons.

The Potential Contribution Of The Chemical Weapons Convention To Combatting Terrorism, Cecil Hunt

Michigan Journal of International Law

This paper includes an identification and brief assessment of features of the CWC that could be helpful in dealing with the danger of use of chemical weapons in terrorist activity. They are presented under six headings which should be viewed as theses. For some of these theses this paper can offer little support, but points, instead, to missed opportunities and to the need for further efforts.

The Relationship Between Human Rights And Refugee Law: What Refugee Law Judges Can Contribute, James C. Hathaway

Book Chapters

In a document released during the summer of 1998, the Austrian Presidency of the European Union formally questioned the continuing value of the United Nations Refugee Convention, and called for the adoption of a new "instrument of speedy assistance in the framework of the political possibilities."

The Austrian proposal would deny most refugees arriving in Europe the legal right to be protected. For the majority, protection would instead become a matter of political discretion. The proposal erroneously asserts that only a small minority of contemporary asylum seekers is entitled to Convention refugee status, in consequence of which a "new approach" …