International Law Commons^™

Insurgent Until Proven Innocent: Land, Power, And The Right To Defend Rights, Kelsey Jost-Creegan

Michigan Journal of International Law

As the climate crisis intensifies, advocates worldwide have stood up to defend their communities, territories, and environment. In response, they have faced violent retaliation. This repression persists despite evolving international, regional, and national-level legal frameworks around the “right to defend rights” and the “right to protection.” This article begins by providing a comprehensive overview of this evolving legal landscape. Against this backdrop, the article examines the tactics and architectures of violence used to repress land and environmental defenders through the lens of counterinsurgency theory.

The article proposes a typology of counterinsurgent violence including: surveillance; stigmatization; criminalization; arbitrary detention; infiltration; cooptation; …

The Gender Of International Criminal Law, Caroline L. Davidson

Michigan Journal of International Law

Notwithstanding the recognition of select gender-based crimes as international crimes and the International Criminal Court’s prosecutors’ professed commitment to seeking justice for gender-based crimes, core doctrines of international criminal law (ICL) obstruct accountability for gendered violence. This article identifies the overlooked gendered implications of a few substantive pillars of ICL: a de facto insistence on a connection to war (“war fetish”), a preoccupation with powerful men, and a focus on the “mastermind” of the crime to the exclusion of other culpable perpetrators.

These substantive pillars, some long-standing and some more recently erected, obscure the vast landscape of gender-based crimes and …

Human Rights, Between Peace And Dignity, Ryan Liss

Michigan Journal of International Law

Today, it seems self-evident that human rights are enshrined at the international level because they protect universal human dignity—a cosmopolitan entitlement that cannot be left to the contingencies of domestic law. The prevalence of this received wisdom, however, masks a fundamental transformation in the idea of human rights over the last century. When human rights were first enshrined in international law—during and following the Second World War— their international status was not seen to be justified primarily by the inherent dignity of persons, but by the instrumental role human rights were understood to play in securing interstate peace. This article …

‘Insistent’ Objectors: The (Ab)Use Of Procedural Defenses Before The International Court Of Justice, Damian A. Gonzalez-Salzberg, Eoin Campbell

Michigan Journal of International Law

Procedural defenses refer to tactical devices that object to either a court’s jurisdiction or to the admissibility of an application, aimed at stopping a court from deciding on the merits of a case or, at least, at limiting the scope of its decision. From its creation in June 1945 and up to the end of 2024, the International Court of Justice (“ICJ”) has adjudicated 101 cases, with almost 80% of them featuring procedural defenses raised by states. These defenses have not only been plentiful, but have been extremely effective, leading to the ICJ’s refusal to decide on the merits of …

The International Order, International Law, And The Definition Of Security, Harlan Grant Cohen

Michigan Journal of International Law

As economic security has seemingly moved to the center of American and European foreign policy, both the United States and the European Union have broadened their interpretation of international law rules governing security, coercion, and intervention. But these interpretations are not exactly new, echoing developing state interpretations of international law that developed states had long ago seemingly rejected. How are these once moribund interpretations of security, force, and coercion being brought back to life?

This article argues that these interpretative shifts highlight the role of the international order as an interpretative mechanism within international law. Borrowing from the work of …

The Justice For Victims Of War Crimes Act: A Dangerous Expansion Of Universal Jurisdiction To Non-International Armed Conflicts, Yuyan (Nicole) Zhang

Michigan Journal of International Law

Universal jurisdiction over war crimes committed in noninternational armed conflict (“NIACs”) has yet to develop a firm legal foundation under international law. The Justice for the Victims of War Crimes Act of 2023, however, amended the War Crimes Statute (18 U.S.C. § 2441) and extended universal jurisdiction to NIACs. This overreach risks infringing on the sovereignty of NIAC-affected states and destabilizing their ongoing peace processes. Many such states prioritize reconciliation through mechanisms like truth commissions over retributive justice through criminal trials. The prosecution of their nationals under U.S. law could undermine their sovereign decisions and unravel delicate efforts toward peace. …

The Institutions Of Exceptions: Justification In Trade And Investment Treaties, Julian Arato

Michigan Journal of International Law

International economic law binds states in the interest of liberalizing markets, including in cross-border trade in goods and services (trade) and capital (investment). The treaty regimes for both trade and investment do this by disciplining states through legal rules, while preserving a modicum of governmental authority over domestic policy. The preservation of policy space in these regimes usually involves a process of exceptions-based justification – through formal exceptions clauses in most trade treaties and some investment agreements, and also through informal exceptions-style reasoning by adjudicators in the investment treaty regime more generally. This “exceptions paradigm” of justification has worked well …

Escape Probability: Rethinking Wartime Protection Of Nuclear Facilities, Pearle M. Lipinski

Michigan Journal of International Law

The 2022 Russian attacks on the Chernobyl and Zaporizhzhia nuclear facilities in Ukraine shocked the international community. Claims that the attacks constituted war crimes immediately entered the public consciousness, and a flurry of opinions were set forth on the international humanitarian law (“IHL”) protections afforded to nuclear plants, focusing on Article 56 of Additional Protocol I of the Geneva Conventions, which provides special protection to nuclear electrical generating stations. These opinions primarily focused on the immediate applicability and shortcomings of Article 56 on the attacks at hand, often operating on the presumption that a massively consequential environmental and humanitarian disaster …

Confronting Catastrophic Risk: The International Obligation To Regulate Artificial Intelligence, Bryan Druzin, Anatole Boute, Michael Ramsden

Michigan Journal of International Law

While artificial intelligence (“AI”) holds enormous promise, many experts in the field are warning that there is a non-trivial chance that the development of AI poses an existential threat to humanity. Existing regulatory initiatives do not address this threat but instead merely focus on discrete AI-related risks such as consumer safety, cybersecurity, data protection, and privacy. In the absence of regulatory action to address the possible risk of human extinction by AI, the question arises: What obligations, if any, does public international law impose on states to regulate its development?

At present there is no scientific consensus as to the …

The Allure Of Trade And Sustainable Development Chapters, Jeesae Kim

Michigan Journal of International Law

Beginning in 2011, the European Union (“EU”) began to include independent Trade and Sustainable Development (“TSD”) chapters in its trade agreements. These chapters seek to protect international labor standards, environmental laws, and corporate social responsibility practices within the scope of the EU’s trade agreements. Trading states that sign onto TSD chapters are meant to engage in ongoing dialogue regarding the substantive commitments outlined in the chapters. If one of the states fails to uphold its substantive commitments, the other state may invoke a unique enforcement mechanism contained within TSD chapters. But unlike arbitration proceedings for non-TSD trade disputes, the TSD …

Rewriting Precedent: How International Adjudicators Influence Compliance, Jeffrey Kucik, Lauren Peritz, Sergio Puig

Michigan Journal of International Law

International cooperation depends on adaptation to changing conditions. International dispute settlement bodies can play a key role in maintaining cooperation over time. Evidence suggests that when legal bodies successfully adapt the law through the reinterpretation of rules, they can promote state compliance. However, this process is incremental and may not happen quickly enough, which can lead to backlash against international courts. In this article, we analyze these dynamics at the World Trade Organization (“WTO”), the global institution regulating international trade. Relying on data and case studies, we show how the Appellate Body modified its interpretations to promote compliance. Because this …

Economic Sanctions As Legal Ordering, J. Benton Heath

Michigan Journal of International Law

This article recovers a critical episode in the history of economic sanctions and considers its implications for international legal order. Beginning in 1905, a group of Chinese citizens launched a series of protests targeting American, British, and Japanese goods. These boycotts caused economic damage, disrupted international relations, and at times won significant political victories. At the same time, they captured the imaginations of peace advocates, lawyers, and scholars, who saw in the boycotts either a fundamental threat to legal ordering, a promising avenue for enforcing interstate peace, or, most radically, an engine for new kinds of political organization outside the …

An Ecofeminist Approach To Climate Risks, Angela Hefti

Michigan Journal of International Law

Climate change poses significant risks to the human right to life. However, international adjudicators have either neglected to examine right to life claims in the context of climate risks or dismissed them as prospective and speculative. International human rights bodies have long applied the standard of imminence to determine whether a threat to the right to life exists and the extent to which it constitutes a violation. In climate change cases, this standard has hardened, requiring a tight temporal connection between climate risks and a violation of the right to life. This article argues that failing to recognize the impact …

Transparency, Accountability, And Influence In The International Investment Law System, Jarrod Wong, Jason Yackee

Michigan Journal of International Law

This article offers the first interdisciplinary critique of transparency in international investment law (“IIL”) that draws on transparency-skeptical and accountability scholarship in political science and public administration. Not only has the expansive IIL literature overlooked these disciplines, but much of it fails to define the core concept of transparency. Building on contributions from the fields of administrative law, international relations, and system theory in classic political science, we provide a novel functionalist account of transparency that traces a line from transparency to accountability to influence in the IIL system.

We make three arguments. First, transparency involves access to data that …

Automating International Human Rights Adjudication, Veronika Fikfak, Laurence R. Helfer

Michigan Journal of International Law

International human rights courts and treaty bodies are increasingly turning to automated decision-making (“ADM”) technologies to expedite and enhance their review of individual complaints. These tribunals have yet to consider many of the legal, normative, and practical issues raised by the use of different types of automation technologies for these purposes. This article offers a comprehensive and balanced assessment of the benefits and challenges of introducing ADM into international human rights adjudication. We argue in favor of using ADM to digitize documents and for internal case management purposes and to make straightforward recommendations regarding registration, inadmissibility, and the calculation of …

Crisis And Change At The United Nations: Non-Amendment Reform And Institutional Evolution, Oona A. Hathaway, Maggie M. Mills, Heather Zimmerman

Michigan Journal of International Law

The Security Council’s inaction in response to the wars in Gaza and Ukraine has once again put a spotlight on structural problems at the United Nations (“U.N.”). Security Council paralysis—particularly the (mis)use of the veto power afforded to the permanent five (“P5”) members of the Council—has long prompted calls for reform. Yet the same veto power prevents nearly all efforts to reform the organization through the formal amendment process provided in the U.N. Charter.

This article argues that there is an alternative way forward: what we call “non-amendment reform.” Rather than seek formal amendments that are unlikely to survive the …

Pave Outer Space And Put Up A Parking Lot: Lagrange Points Should Be The Common Heritage Of Mankind, David A. Koplow

Michigan Journal of International Law

Outer space offers a vast array of opportunities, with different locations or regions available for exploitation by diverse users for a growing variety of satellite functions. But not all sectors of space are equally valuable for all applications, and the most desirable venues can become crowded, affording a premium for those who gain access first and impeding the development of a fair and efficient all-inclusive international legal regime.

This article focuses on Lagrange points, a finite series of special locations in space where the gravitational forces from a pair of large celestial bodies interact in unusual ways. These points afford …

Man On Mars: How Can International Space Law Limit The Environmental Consequences Of The Coming Rush For Resources In Space, Elizabeth Anne Henderson

Michigan Journal of International Law

The body of international law governing space has stood at a standstill for decades. The five central treaties regulating this area of law are not only vague, but they have also become a hindrance to the global community’s ability to address the rapidly intensifying second space race. The treaties do not adequately state who space belongs to, who is entitled to take advantage of the natural resources of celestial bodies, or what protections are afforded to celestial environments in the face of impending mining and resource extraction projects. This impasse within international law has not stopped entrepreneurs and corporations from …

Neutral Business Assistance And The Limits Of Complicity Under International Criminal Law, Nikola R. Hajdin

Michigan Journal of International Law

Business transactions between corporations and actors involved in grave human rights violations present significant challenges for the assessment of corporate criminal liability. This is particularly evident in cases of “neutral business assistance,” which refer to business conduct that appears legitimate on the surface and falls within day-to-day business operations but nonetheless contributes to the crime. An example of neutral business assistance is selling generic goods (for example, computer technology) legally at market rates, without the explicit intent to aid criminal activity, that increases the perpetrator’s capacity to carry out human rights violations. In such cases, discerning the point at which …

Aggressor State, Aggressor Individual, And What International Law Does/Should Protect, Nurbanu Hayır

Michigan Journal of International Law

This note examines the measures taken against Russian citizens in the context of the Russo-Ukrainian War in positive international law and analyzes the rationale for sanctioning individual citizens of an aggressor state. It questions whether the gravity of state aggression by Russia enables measures targeting individuals based solely on their Russian citizenship by investigating whether the blanket denial of asylum and imposition of travel bans for Russian citizens constitutes a breach of norms of international law. It further tests this citizenship link by turning to the legality of denationalization of pro-Russian Ukrainian citizens under international law. Building on this foundation, …

Child-Taking, Diane Marie Amann

Michigan Journal of International Law

A ruling group at times takes certain children out of their community and then tries to remake them in its image. It tries to rid the child of undesired differences, in ethnicity or nationality, religion or politics, race or ancestry, culture or class. There are too many examples: the colonialist residential schools that forced settler cultures on Indigenous children; the military juntas that kidnapped dissidents’ children; and today’s reports of abductions amid crises like that in Syria. Too often nothing is done, and the children are lost. But that may be changing, as the International Criminal Court (“ICC”) is seeking …

Power Shift, The South China Sea Dispute, And The Role Of International Law, Youngmin Seo

Michigan Journal of International Law

The arena of the law of the sea has become a battlefield for Sino-American legal warfare, commonly referred to as “lawfare,” and it is in the tumultuous waters of the South China Sea where this fierce contest of great powers rages. The divergent perspectives on international law, particularly regarding maritime law, between China and the United States stem from the countries’ distinct historical experiences, memories, and outlooks. This inherent disparity in epistemology shapes their comprehension of the fundamental tenets of the United Nations Convention on the Law of the Sea (“UNCLOS”), specifically the conflicting notions of mare clausum and mare …

Whose International Law Is It Anyway? The Battle Over The Gatekeepers Of Voluntarism, Shelly Aviv Yeini

Michigan Journal of International Law

International law has been ruled by the theory of voluntarism for the course of the last two centuries. It is currently being challenged by competing theories, which do not see states’ consent as the main justification for international law. The theories of naturalism, international constitutionalism, and communitarianism all consider justification for international law to lie elsewhere than the realm of consent. While each theory provides a different framework for explaining the validity of international law, they all seek to justify their dissent from consent. Naturalism, international constitutionalism, and communitarianism view states as participators in the making of international law alongside …

Restorative Justice For International Traditional Cultural Expression Ownership Disputes, Sandra H. Sulzer

Michigan Journal of International Law

Traditional cultural expressions (“TCE”), which include dances, songs, and pottery, and traditional knowledge (“TK”), which includes plant properties, agricultural practices, and artistic techniques, are inarguably valuable both to the groups that create them and to outsiders who wish to use or sell them. International law broadly, and intellectual property (“IP”) law more specifically, are not well-suited to protect the interests of creators of TCE and TK. A persistent pattern of exploitation of traditional expressions and knowledge has been well-documented. But responses have been dissatisfying, and sometimes begin from a place of disregarding the value of these contributions. At present, when …

Article 103 Of The United Nations Charter: Uncharted Possibilities? The Ukraine Conflict And Beyond, Eran Sthoeger

Michigan Journal of International Law

Article 103 of the United Nations Charter establishes the primacy of states’ obligations under the Charter over their other international obligations. The effect of Article 103 on states’ obligations has been discussed in the jurisprudence and literature but only in the context of obligations conflicting with binding Security Council decisions. Those discussions fail to shed light on its legal significance in a variety of other situations. This writing explores the application of Article 103 in other contexts. It explores the legal ramifications of Article 103 applied to states’ obligations that conflict with the Charter itself, with obligations contained in certain …

Legal Agency Of Small States: Regional Law Cooperation Amid Indo-Pacific Pressures, Tan Hsien-Li

Michigan Journal of International Law

Discussions about the Indo-Pacific contestation between China and the United States often focus on both superpowers’ geopolitical strategies and economic and military might. The experiences of small and less powerful Indo-Pacific states navigating these tensions are relatively overlooked or even discounted. Yet, they are not passive bystanders in their longstanding neighborhood drama— they often seek strength in unity via their regional organizations and produce regional law to safeguard their collective interests. In short, they exercise legal agency. Using the Association of Southeast Asian Nations’ (“ASEAN”) experience of regional law cooperation to navigate challenges (including, but not limited to, the U.S.-China …

Intersectionality's Travels To International Human Rights Law, Jens T. Theilen

Michigan Journal of International Law

Over the last two decades, references to intersectionality have become increasingly common in international human rights law. Many human rights bodies now make use of intersectionality in some form, and scholars propose more widespread and in-depth intersectional analysis as a way to better capture how human rights are realized or violated. Against the backdrop of this intersectional turn, this article scrutinizes the dynamics of intersectionality’s travels to international human rights law, asking how power structures influence where and how intersectionality can travel, and how its meaning and use change across contexts.

This article provides a bird’s-eye view of different human …

Rebraiding Frayed Sweetgrass For Niijaansinaanik: Understanding Canadian Indigenous Child Welfare Issues As International Atrocity Crimes, Alyssa Couchie

Michigan Journal of International Law

The unearthing of the remains of Indigenous children on the sites of former Indian Residential Schools (“IRS”) in Canada has focused greater attention on anti-Indigenous atrocity violence in the country. While such increased attention, combined with recent efforts at redressing associated harms, represents a step forward in terms of recognizing and addressing the harms caused to Indigenous peoples through the settler-colonial process in Canada, this note expresses concern that the dominant framings of anti-Indigenous atrocity violence remain myopically focused on an overly narrow subset of harms and forms of violence, especially those committed at IRSs. It does so by utilizing …

Reforming World Bank Dispute Resolution: Icsid In Context, Susan Franck

Michigan Journal of International Law

During a tumultuous moment in history with shifts in power and politics, international dispute settlement stands at a crossroads. In theory, international dispute settlement should not institutionalize abuses of power, rely upon a monolithic one-size-fits-all model, or be a waste of resources, which will inevitably generate stakeholder dissatisfaction. Rather, dispute resolution should reflect both a commitment to the rule of law and equal treatment that sustains nuanced, fair, and just procedures most likely to provide results of substantive quality. Against this backdrop and with the major reforms concluded in July 2022, this article explores the reality of dispute resolution at …

Trade-Based Solutions For Revitalizing Post-Conflict Economies, Ryan R. Migeed

Michigan Journal of International Law

International trade improves efficiency in home markets, creates new sources of demand for domestic industries, and boosts worker productivity. However, some types of trade are better than others for reviving the economies of countries emerging from internal or international armed conflicts. This note evaluates existing trade mechanisms that ostensibly help developing countries but fail to actually do so. It ultimately recommends the use of investor-state partnerships over trade-based mechanisms as the appropriate tool for improving the economies of post-conflict states. Part I evaluates a number of these existing trade mechanisms, including preferential trade agreements and the General System of Preferences. …