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Articles 91 - 120 of 170
Full-Text Articles in National Security Law
Civil Aircraft As Weapons Of Large-Scale Destruction: Countermeasures, Article 3bis Of The Chicago Convention, And The Newly Adopted German "Luftsicherheitsgesetz", Robin Geiß
Michigan Journal of International Law
It is thus the aim of this Article to map out the international legal framework relevant for designing countermeasures against nonstate actors who convert civil aircraft into weapons of destruction. As a first step, this Article sketches out the applicable rules relating to international civil aviation security and highlights the dichotomy between nonstate actor threats and interstate threats at the base of these rules. As will be seen below, nonstate actors abusing civil aircraft as weapons of destruction is a new challenge not only in terms of destructive quality but also in a legal sense, in that the question of …
Legal "Black Hole"? Extraterritorial State Action And International Treaty Law On Civil And Political Rights, Ralph Wilde
Legal "Black Hole"? Extraterritorial State Action And International Treaty Law On Civil And Political Rights, Ralph Wilde
Michigan Journal of International Law
This Article considers the significant role that extraterritorial activity is playing in the post-9/11 foreign policy of some States and the idea that this activity somehow takes place "outside" the law or, at least, outside an arena where legal norms apply as a matter of course rather than only when and to the extent that the State involved decides these norms will apply. It begins in Section II by mapping out the extraterritorial state activities conducted since 9/11, covering activities with a personalized object-such as the military action taken in Afghanistan against Al Qaeda-and activities with a spatial (territorial) object-such …
Article 9 Of The Constitution Of Japan And The Use Of Procedural And Substantive Heuristics For Consensus, Mark A. Chinen
Article 9 Of The Constitution Of Japan And The Use Of Procedural And Substantive Heuristics For Consensus, Mark A. Chinen
Michigan Journal of International Law
This Article’s purpose is to examine the revision debates through the lens of recent scholarship on constitutional decisionmaking to see what lessons might be drawn about constitutionalism in Japan and elsewhere. In Part I, the author discusses Article 9's text and interpretation and focus on three controversies: first, Japan's ability to use force to defend itself and the related issue of the constitutionality of the Japan Self Defense Force (SDF); second, Japan's ability to engage in collective self-defense, which impacts the state's security relationship with the United States under the U.S.-Japan Mutual Security Agreement; and finally, Japan's ability to participate …
Beyond The "War" On Terrorism: Towards The New Intelligence Network, Ronald D. Lee, Paul M. Schwartz
Beyond The "War" On Terrorism: Towards The New Intelligence Network, Ronald D. Lee, Paul M. Schwartz
Michigan Law Review
In Terrorism, Freedom, and Security, Philip B. Heymann undertakes a wide-ranging study of how the United States can - and in his view should - respond to the threat of international terrorism. A former Deputy Attorney General of the United States Department of Justice ("DOJ") and current James Barr Ames Professor of Law at Harvard Law School, Heymann draws on his governmental experience and jurisprudential background in developing a series of nuanced approaches to preventing terrorism. Heymann makes clear his own policy and legal preferences. First, as his choice of subtitle suggests, he firmly rejects the widely used metaphor …
Be Reasonable! Thoughts On The Effectiveness Of State Criticism In Enforcing International Law, Michael Y. Kieval
Be Reasonable! Thoughts On The Effectiveness Of State Criticism In Enforcing International Law, Michael Y. Kieval
Michigan Journal of International Law
This Note examines the effectiveness of diplomatic criticism in enforcing international law, particularly in the counter-terrorism (or anti-insurgency) context. It is not concerned with determining what international law does or does not "in fact" allow States to do in combating terrorism and other existential threats.
The United Nations Security Council's Quest For Effectiveness, Emilio J. Cárdenas
The United Nations Security Council's Quest For Effectiveness, Emilio J. Cárdenas
Michigan Journal of International Law
The terrorist attacks of September 11, 2001, on New York's World Trade Center Towers and Washington's Pentagon, instantly refocused the United Nations' attention on the issue of international terrorism. The Security Council (Council) responded immediately: first, on September 12, 2001, with an unequivocal condemnation of the attacks, contained in Resolution 1368 (2001), and second, on September 28, 2001, with the enactment of Resolution 1373 (2001), which, under Chapter VII of the Charter, mandated that all Member States take specific actions to combat international terrorism. Terrorism was rightly understood to be "a threat to international peace and security."
The War Against Iraq And The Future Of International Law: Hegemony Or Pluralism?, Andreas Paulus
The War Against Iraq And The Future Of International Law: Hegemony Or Pluralism?, Andreas Paulus
Michigan Journal of International Law
This Article is devoted to the question of the future relevance of international law at a time when the idea of a "rule of law" in international affairs seems to be waning. Why should the sole superpower look to international law in its quest for protection from dangers of weapons of mass destruction and terrorists? Is the European insistence on questions of legality, which was visible in the dramatic British attempts to secure some kind of Security Council backing and to advance international legal arguments for its participation in the invasion of Iraq, more than a fig leaf for a …
Checks And Balances In Wartime: American British And Israeli Experiences, Stephen J. Schulhofer
Checks And Balances In Wartime: American British And Israeli Experiences, Stephen J. Schulhofer
Michigan Law Review
Three years after an attack that traumatized the nation and prompted massive military and law-enforcement counter-measures, we continue to wrestle with the central dilemma of the rule of law. Which is more to be feared - the danger of unchecked executive and military power, or the danger of terrorist attacks that only an unconstrained executive could prevent? Posed in varying configurations, the question has already generated extensive litigation since September 11, 2001, and a dozen major appellate rulings. Last Term's Supreme Court trilogy - Rasul v. Bush, Hamdi v. Rumsfeld and Rumsfeld v. Padilla - clarified several important points …
Judging The Next Emergency: Judicial Review And Individual Rights In Times Of Crisis, David Cole
Judging The Next Emergency: Judicial Review And Individual Rights In Times Of Crisis, David Cole
Michigan Law Review
As virtually every law student who studies Marbury v. Madison learns, Chief Justice John Marshall's tactical genius was to establish judicial review in a case where the result could not be challenged. As a technical matter, Marbury lost, and the executive branch won. As furious as President Jefferson reportedly was with the decision, there was nothing he could do about it, for there was no mandate to defy. The Court's decision offered no remedy for Marbury himself, whose rights were directly at issue, and whose rights the Court found had indeed been violated. But over time, it became clear that …
Civil Liberties And The Terrorism Prevention Paradigm: The Guilt By Association Critique, Robert M. Chesney
Civil Liberties And The Terrorism Prevention Paradigm: The Guilt By Association Critique, Robert M. Chesney
Michigan Law Review
Faysal Galab is a twenty-seven-year-old American citizen of Yemeni descent who was born and raised in Buffalo, New York. He is married, has three children, and used to run a gas station in the Buffalo suburb of Lackawanna. Perhaps you have heard of him; he will be spending some or all of the next ten years in federal prison because in spring of 2001 he and six other Lackawanna residents traveled to Afghanistan and trained with Al Qaeda.
Preemptive Strategies In International Law, Michael N. Schmitt
Preemptive Strategies In International Law, Michael N. Schmitt
Michigan Journal of International Law
This Article explores the appropriateness of preemptive strategies in international law. Are preemptive actions approved by the international community lawful? Can States act unilaterally or in a coalition of the willing to preempt terrorism, the development and transfer of WMD, or other threats? If so, under what circumstances and based on what quantum and quality of evidence? When can preemptive actions be taken against non-State actors such as terrorists who are based in other States?
Bête Noire: How Race-Based Policing Threatens National Security, Lenese C. Herbert
Bête Noire: How Race-Based Policing Threatens National Security, Lenese C. Herbert
Michigan Journal of Race and Law
This Article asserts that race-based policing, enabled and exacerbated by race-blind judicial review, creates an ire with a purpose that promises, especially after September 11, to make us all less safe. The illegitimate marginalization of American citizens aggravates an already alienated population and primes them for cooperation with those who seek to harm the United States. Race-based policing guts the expectation of fair-dealing, legitimacy, and justice in the criminal justice system, creating marginalized populations, especially of African Americans. Lack of judicial redress in the face of such policing irrevocably stains already beleaguered African Americans (and others so policed) as inferior …
When Can Nations Go To War? Politics And Change In The Un Securtiy System, Charlotte Ku
When Can Nations Go To War? Politics And Change In The Un Securtiy System, Charlotte Ku
Michigan Journal of International Law
In an appreciation of Harold Jacobson written for the American Journal of International Law, the author concluded that following the events of September 11, 2001, we would need the kind of gentle wisdom Harold Jacobson brought to his tasks more than ever. The author also recalled Harold Jacobson's own observation in Networks of Interdependence that his assessment of the global political system was an optimistic, but not a naive one. These qualities of quiet determination to get to the bottom of an issue and of optimism stemmed from a fundamental belief that individuals, armed with information and the opportunity …
Marking Carnivore's Territory: Rethinking Pen Registers On The Internet, Anthony E. Orr
Marking Carnivore's Territory: Rethinking Pen Registers On The Internet, Anthony E. Orr
Michigan Telecommunications & Technology Law Review
"Carnivore" entered the online world's collective consciousness in June 2000 when the Federal Bureau of Investigation unveiled the Internet surveillance software program to telecommunications industry specialists. The FBI claims the program allows agents to scan the traffic of an Internet Service Provider (ISP) for messages or commands to or from a criminal suspect and then intercept only those messages, capturing copies of e-mails, web site downloads and other file transfers[...] A central issue in the controversy surrounding Carnivore is whether current law permits the FBI to employ the program in the Internet context. Bureau officials claim statutory authority for deployments …
Antiterrorism Military Commissions: The Ad Hoc Dod Rules Of Procedure, Jordan J. Paust
Antiterrorism Military Commissions: The Ad Hoc Dod Rules Of Procedure, Jordan J. Paust
Michigan Journal of International Law
While the article Antiterrorism Military Commissions: Courting Illegality was set for publication, the Department of Defense formally issued its first set of Procedures for Trials by Military Commission of Certain Non-United States Citizens in the War Against Terrorism. The President's November 13th Military Order had set up several per se violations of international law. Instead of attempting to avoid them, the DOD Order of March 21, 2002 continued the violations, set up additional violations of international law, and created various rules of procedure and evidence that, if not per se violative of international law, are highly problematic. This is a …
The Anatomy Of An Institutionalized Emergency: Preventive Detention And Personal Liberty In India, Derek P. Jinks
The Anatomy Of An Institutionalized Emergency: Preventive Detention And Personal Liberty In India, Derek P. Jinks
Michigan Journal of International Law
Despite many indications of an emerging transnational consensus on the scope of human rights law, fundamental disagreements persist. These disagreements are, in many respects, structured around important cleavages in the international community such as: North/South, East/West, and capitalist/socialist. Whether these cleavages are understood as cultural, economic, or political, international lawyers must develop a better understanding of the specific practices that generate divergent interpretations of human rights standards. Without such an understanding, these factions seem to underscore an irreducibly political conception of human rights. Indeed, the prospects of a global "community of law" turn on the degree to which fundamental differences …
New Era, New Threats: Wrestling With Interstitial Actors, Joshua A. Levy
New Era, New Threats: Wrestling With Interstitial Actors, Joshua A. Levy
Michigan Journal of International Law
Hopefully, the symposium will spark meaningful action toward creating such desperately needed solutions in the intersecting fields of law and national security policy as well as the study of international security law in law schools world-wide. Without such education, continued dialogue, and action, we mark the beginning of the end. With them, however, this world may continue on its road toward becoming a collection of secure democracies, held fast by the rule of law.
Post-Cold War International Security Threats: Terrorism, Drugs, And Organized Crime Symposium Transcript, Michigan Journal Of International Law
Post-Cold War International Security Threats: Terrorism, Drugs, And Organized Crime Symposium Transcript, Michigan Journal Of International Law
Michigan Journal of International Law
Symposium transcript.
Clear And Present Danger: Enforcing The International Ban On Biological And Chemical Weapons Through Sanctions, Use Of Force, And Criminalization, Michael P. Scharf
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
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.
Catastrophic Terrorism- Thinking Fearfully, Acting Legally, Barry Kellman
Catastrophic Terrorism- Thinking Fearfully, Acting Legally, Barry Kellman
Michigan Journal of International Law
The time has come to move beyond howls of alarm to a public discussion of what policies should be adopted or reformed. That discussion should proceed even as crucial questions remain only partially answerable: How realistic is the possibility of catastrophic terrorism? How easy is it to make a catastrophic device that actually works? Why would any person or group want to kill hundreds, thousands, or tens of thousands of innocent victims?
Bellum Americanum: The U.S. View Of Twenty-First Century War And Its Possible Implications For The Law Of Armed Conflict, Michael N. Schmitt
Bellum Americanum: The U.S. View Of Twenty-First Century War And Its Possible Implications For The Law Of Armed Conflict, Michael N. Schmitt
Michigan Journal of International Law
After describing Bellum Americanum at some length, the article turns to the "stressors" it presents for the current law of armed conflict. The term stressors is used to suggest that law evolves as it is stressed by changing circumstances. Much as water seeks a constant level, law inevitably moves to fill normative lacunae. Correspondingly, law loses its normative valence when it no longer serves "community"-a relative concept-ends. Thus, law is contextual and directional. It is contextual in the sense that it is understood and applied based upon the specific social, economic, political, and military milieu in which it operates. …
Watching The Watchdog: Security Oversight Law In The New South Africa, Christopher A. Ford
Watching The Watchdog: Security Oversight Law In The New South Africa, Christopher A. Ford
Michigan Journal of Race and Law
This Article attempts to assess the experiences of post-apartheid South Africa in the realm of national security law by examining key issues from constitutional, statutory, and policy perspectives. It observes that South Africans now have a great "window of opportunity" that allows them to establish the habits and mores necessary to a working security oversight regime, and argues that the way in which South Africa strikes a balance between the requirements of national security and the preservation of personal liberties is of enormous importance to the Republic's future. It further contends that South Africa's choices in this arena could have …
The Right To Self-Defense Once The Security Council Takes Action, Malvina Halberstam
The Right To Self-Defense Once The Security Council Takes Action, Malvina Halberstam
Michigan Journal of International Law
This article discusses the views of these commentators in the light of the language, history, and policies underlying Article 51. It concludes that the Charter was not intended to and should not be interpreted to deny a state the right of self-defense, even if the Security Council has taken measures to deal with the problem; if states are to cede their right to self-defense once the Security Council has taken measures, that should be made explicit.
Legal Restraints On Security Council Military Enforcement Action, Judith G. Gardam
Legal Restraints On Security Council Military Enforcement Action, Judith G. Gardam
Michigan Journal of International Law
This article considers an issue that, given its importance for the protection of combatants and civilians in armed conflict, has not attracted the attention it warrants: namely, the extent to which legal restraints derived from the ius in bello and the ius ad bellum apply to the Security Council when it is taking military enforcement action under Chapter VII of the United Nations Charter. Although a position not free from controversy, the recent practice of the Security Council in "authorizing" States to use force to restore international peace and security is treated as military enforcement action under Chapter VII of …
The "Privatization" Of Security Council Enforcement Action: A Threat To Multilateralism, John Quigley
The "Privatization" Of Security Council Enforcement Action: A Threat To Multilateralism, John Quigley
Michigan Journal of International Law
In-the post-Cold War period, the United Nations Security Council has emerged from a side show of international politics to center stage. It has acted to repel aggression, to promote humanitarian efforts, and to enforce democracy. This flowering of activity holds the potential for achieving concerted international action to remedy situations involving great human misery.
U.S. Government Control Over The Export Of Scientific Research And Other Technical Data: Holes In The Sieve, Robert Greenspoon
U.S. Government Control Over The Export Of Scientific Research And Other Technical Data: Holes In The Sieve, Robert Greenspoon
Michigan Journal of International Law
In Part I, I establish the backdrop for answering the question by describing the kinds of scientific data that might be subject to security classification and export licensing. In Part II, I outline briefly who chooses what should be restricted and who enforces these restrictions. In Part III, I describe several situations in which the federal government has vigorously enforced controls over the dissemination of scientific information. I also analyze two recent cases involving computer software that I believe analogize directly to the scientific endeavor. Finally, in Part IV, I explain why First Amendment barriers, the growth of the Internet …
Executive Detention In Time Of War, Richard A. Posner
Executive Detention In Time Of War, Richard A. Posner
Michigan Law Review
A Review of In the Highest Degree Odious: Detention Without Trial in Wartime Britain by A.W. Brian Simpson
Israel's Forty-Five Year Emergency: Are There Time Limits To Derogations From Human Rights Obligations?, John Quigley
Israel's Forty-Five Year Emergency: Are There Time Limits To Derogations From Human Rights Obligations?, John Quigley
Michigan Journal of International Law
This article analyzes the permissibility of such a derogation under the Covenant and under general international law. Part I of this article outlines the historical development of Israel's declaration of a continuous state of emergency and its justification for detention without trial. Part II examines international rules on detention and derogation. Part III establishes a standard for declaring a state of emergency and applies this standard to Israel's declaration, with respect both to Israel's own territory and to the Palestinian territories occupied by Israel. Finally, Part IV inquires whether Israel will apply the Covenant as a matter of domestic law.
Libya And The Aerial Incident At Lockerbie: What Lessons For International Extradition Law?, Christopher C. Joyner, Wayne P. Rothbaum
Libya And The Aerial Incident At Lockerbie: What Lessons For International Extradition Law?, Christopher C. Joyner, Wayne P. Rothbaum
Michigan Journal of International Law
Does concerted action taken by the U.N. Security Council against Libya bolster the international extradition process? Or do these resolutions represent little more than a new coat of legal paint on the same old political problems? This article seeks to answer these questions through an analysis of the nature of terrorism, the customary bases for jurisdiction and extradition, and the validity of Libya's refusal to surrender the Lockerbie suspects.