Michigan Journal of International Law最新文献

{"title":"Relentless Atrocities: the Persecution of Hazaras","authors":"Medhi Hakimi","doi":"10.36642/mjil.44.2.relentless","DOIUrl":"https://doi.org/10.36642/mjil.44.2.relentless","url":null,"abstract":"As one of the main ethnic groups in Afghanistan, Hazaras are Farsi-speaking and mostly Shi’a Muslims in a predominantly Sunni Muslim country. They are also distinguishable by their Asiatic appearance. Throughout Afghanistan’s history, Hazaras have suffered considerably under different regimes, enduring recurring massacres, enslavement, and forced displacement. Despite Afghanistan’s accession to the Rome Statute in 2003, the plight of Hazaras has not improved. Indeed, the assaults on Hazaras have only intensified in recent years, impacting virtually every aspect of their lives. This article argues that the recent and ongoing attacks against Hazaras constitute a crime against humanity. In particular, I show, element by element, that there is a reasonable basis to believe that the assaults on Hazaras amount to persecution based on ethnic and religious grounds pursuant to article 7(1)(h) of the Rome Statute. Accordingly, the International Criminal Court and the global community must take urgent actions to investigate the relentless atrocities against Hazaras and to hold the perpetrators accountable. Failure to do so, as warned by the U.S. Holocaust Memorial Museum, may lead to a full-blown genocide.","PeriodicalId":331401,"journal":{"name":"Michigan Journal of International Law","volume":"36 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135635661","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Is Climate Change a Threat to International Peace and Security?","authors":"M. Nevitt","doi":"10.2139/ssrn.3689320","DOIUrl":"https://doi.org/10.2139/ssrn.3689320","url":null,"abstract":"The climate-security century is here. Both the United Nations Intergovernmental Panel on Climate Change (“IPCC”) and the U.S. Fourth National Climate Assessment (“NCA”) recently sounded the alarm on climate change’s “super-wicked” and destabilizing security impacts. Scientists and security professionals alike reaffirm what we are witnessing with our own eyes: The earth is warming at a rapid rate; climate change affects international peace and security in complex ways; and the window for international climate action is slamming shut.","PeriodicalId":331401,"journal":{"name":"Michigan Journal of International Law","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-09-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129304858","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Reinvigorating the Human Right to Technology","authors":"Haochen Sun","doi":"10.36642/mjil.41.2.reinvigorating","DOIUrl":"https://doi.org/10.36642/mjil.41.2.reinvigorating","url":null,"abstract":"The right to technology is a forgotten human right. Dating back to 1948, the right was established by the Universal Declaration of Human Rights (“UDHR”) in response to the massive destruction wrought by technologically advanced weapons in the Second World War. This human right embodies one of the most profound lessons the framers of the UDHR learned from this war: Technology must benefit humanity rather than harm it. \u0000 \u0000It has been more than seventy years since the adoption of the UDHR, and technology has advanced at a rapid pace and become more important than ever in our daily lives. Yet in this age of technology, the right to technology remains obscure, dormant, and ineffective. No other human right has received such scant attention, and the right to technology has indeed become an “orphan” in the international human rights regime. This article traces the origins of society’s disregard for the right and attributes it to the confluence of three main contributing factors: (1) the right’s inherent obscurity, (2) the ineffective human rights enforcement system, and (3) the international community’s overemphasis on intellectual property protection. The current human rights regime is unable to sufficiently address these complex factors, as it remains deeply rooted in the individual rights system and lacks a fully-fledged distributive justice vision. \u0000 \u0000Against this backdrop, this article reinvigorates the right to technology by recommending its protection as a collective right. It considers how and why the right to technology should be redefined as a collective right that entitles people to enjoy the benefits of technological progress and minimizes the harms that such progress may cause. A collective right to technology can protect both larger societal interests in maintaining public freedom and dignity, as well as specific group interests in guarding against the use of technologies to prejudice group freedom and dignity. This new understanding of the right to technology, therefore, sets distributive justice agendas for promoting the development of intellectual property law into the public interest.","PeriodicalId":331401,"journal":{"name":"Michigan Journal of International Law","volume":"29 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-06-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114759623","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Trade Multilateralism and U.S. National Security: The Making of the GATT Security Exceptions","authors":"Mona Pinchis-Paulsen","doi":"10.36642/mjil.41.1.trade","DOIUrl":"https://doi.org/10.36642/mjil.41.1.trade","url":null,"abstract":"Today, there are an unprecedented number of disputes at the World Trade Organization (“WTO”) involving national security. The dramatic rise in trade disputes involving national security has resuscitated debate over the degree of discretion afforded to WTO Members as to when and how to invoke Article XXI, the Security Exception, of the General Agreement on Tariffs and Trade (“GATT”), with binding effect. The goal of this article is to shed light on contemporary questions and concerns involving national security and international trade, particularly questions involving the appropriate invocation of Article XXI GATT, through careful attention to the article’s historical context. The article elucidates the diverse strategic and economic considerations that shaped the meaning of U.S. national security interests at the time when national delegations were drafting the post-war multilateral trade system, the ITO. It demonstrates how these interests, in turn, created the language, phrasing, and placement of the security exception within the ITO Charter, and details when and how this was adopted in the GATT. This article argues that analyzing internal U.S. practice into the making of Article XXI is relevant for current and future efforts to interpret the exception, thereby contributing to existing literature on Article XXI GATT. It provides the internal deliberations of U.S. officials who served as key architects of the multilateral trade system and of the ITO Charter’s security exception. Additionally, the article captures a fascinating story as to how different U.S. agencies competed to define U.S. foreign and economic policies at the time and shows how the compromises struck help to explain the making of article XXI GATT.","PeriodicalId":331401,"journal":{"name":"Michigan Journal of International Law","volume":"20 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115300584","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Investor-State Arbitration: Economic and Empirical Perspectives","authors":"M. Faure, Wanli Ma","doi":"10.4324/9780429322334-10","DOIUrl":"https://doi.org/10.4324/9780429322334-10","url":null,"abstract":"The investor-state arbitration system (“ISA”) was originally modelled on traditional commercial arbitration and was expected to deliver fast, good, and cheap decisions, especially in comparison to domestic court systems. Yet the ISA system has increasingly been criticized, especially by developing countries. Developing countries claim that the system is not cheap, that decision-making increasingly takes a long time, and that arbitrators are biased in favor of investors (often coming from developed countries in the global North) and against states from the developing South. Several developing states have even withdrawn from the ICSID Convention, which governs the settlement of disputes between investors and states through the institution of the same name. This article provides an economic and an empirical perspective on ISA: It reviews the traditional Law and Economics arguments in favor of and against international commercial arbitration, analyzing to what extent the characteristics of ISA make ISA different than international commercial arbitration. Moreover, the article summarizes the rich empirical literature on the functioning of ISA, and it compares and synthesizes this empirical literature with Law and Economics theories. Based on both Law and Economics and the empirical literature, the article then analyzes existing suggestions for reforming the ISA system.","PeriodicalId":331401,"journal":{"name":"Michigan Journal of International Law","volume":"7 4","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-11-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"113931969","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"International Courts Improve Public Deliberation","authors":"Shai Dothan","doi":"10.2139/SSRN.2968850","DOIUrl":"https://doi.org/10.2139/SSRN.2968850","url":null,"abstract":"Public deliberation is essential for democracy to flourish. Taking decisions away from elected bodies and transferring them to courts seems to diminish deliberation. The damage appears even greater when decisions are taken away from domestic bodies and given to international courts — organizations considered to be completely independent from the public. But this view is mistaken. It stems from perceiving courts as saying the last word on the issues on their agenda. International courts are in fact engaging in a dialogue with the public, with governments, and with an elite of professional lawyers. International courts can spark a debate instead of silencing it. This paper explains how international courts shape public discourse by supplying legal arguments to the public and by building networks of activists, how these courts interact with governments, and how they form an international community of lawyers. Considering all this, the paper concludes that international courts improve public deliberation.","PeriodicalId":331401,"journal":{"name":"Michigan Journal of International Law","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-05-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127140716","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Ambivalent Enforcement: International Humanitarian Law and Human Rights Tribunals","authors":"S. Tabak","doi":"10.2139/SSRN.2913674","DOIUrl":"https://doi.org/10.2139/SSRN.2913674","url":null,"abstract":"The question of how to best enforce the decisions of international tribunals looms large in international law. Specifically, the sub-field of international law known as international humanitarian law (IHL), or the law of war, suffers from a lack of enforcement options as its Achilles heel. No tribunal exists with specific subject matter jurisdiction to adjudicate during situations that may give rise to state violations of international humanitarian law. Meanwhile, human rights tribunals have the subject matter jurisdiction to resolve human rights disputes, and there are significant areas of substantive overlap between humanitarian law and human rights law. Focusing on the interplay between international human rights law and international humanitarian law, this Article examines whether, based on this substantive overlap, human rights tribunals offer an appropriate forum for the enforcement of IHL. This article makes two important contributions: first, it offers a normative framing of how to utilize the abstract legal standard of lex specialis when IHL and HRL may simultaneously apply; second, the Article assesses the impact of employing IHL at human rights tribunals, concluding that this practice, even when the resulting decisions are not binding, may result in increased enforcement of IHL.","PeriodicalId":331401,"journal":{"name":"Michigan Journal of International Law","volume":"PP 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126425637","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Problem of Purpose in International Criminal Law","authors":"P. Keenan","doi":"10.2139/SSRN.2655631","DOIUrl":"https://doi.org/10.2139/SSRN.2655631","url":null,"abstract":"International criminal tribunals have become an important part of the landscape of post-conflict reconstruction. Despite their widespread acceptance, scholars and advocates have struggled to articulate a clear purpose for international criminal law. What good is international criminal law? What can it accomplish? What is its purpose? There exists no consensus among scholars and advocates about the purposes of international criminal law, and this lack of clarity affects how the tribunals operate and can undermine their effectiveness. This article fills that gap by first sorting through the competing theories about what the purposes of international criminal law might be. The article then identifies three objectives that are consistent with the institutional capacity of international criminal tribunals and consistent with the history and doctrine of international criminal law, and shows how these purposes can be implemented in practice. I argue that there are three policy objectives that international criminal tribunals should attempt to achieve, and I show how these objectives are or can be achieved in practice. First, international criminal tribunals should target those widespread harms that affect many individuals as a way to ensure a full accounting of the atrocities. In practical terms, this means that prosecutors would focus on systematic crimes — those with many perpetrators and victims — rather than building cases against a very small number of politically-powerful individuals. Second, international criminal tribunals should target those crimes that caused the greatest stigma to victims as a way to use the authority of the tribunal to condemn as wrongful conduct that occurred during the conflict. Prosecutors can select cases that carry the greatest social stigma as a way to validate the experience of victims — to stamp conduct as wrongful and illegal even if that conduct was widespread during the conflict. In practice this would mean prosecuting a range of cases about sexual violence as a way to condemn as wrongful behavior that was widespread during the conflict. Third, prosecutors should pursue the interests of victims by using the law to develop as much information as possible about the conflict, and the harms that came to the victims.","PeriodicalId":331401,"journal":{"name":"Michigan Journal of International Law","volume":"520 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-09-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123072955","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"After Atrocity: Optimizing UN Action Toward Accountability for Human Rights Abuses","authors":"Steven R. Ratner","doi":"10.2139/SSRN.2647433","DOIUrl":"https://doi.org/10.2139/SSRN.2647433","url":null,"abstract":"With the UN's attention to individual accountability for human rights abuses now well into its third decade, this paper appraises the added value of a UN role and the best methods for accomplishing it. The paper argues that human rights fact-finding is an especially important task for the UN and considers, based on past practice, the factors that contribute to successful fact-finding as well as the pitfalls for the UN to avoid in the future. Some of the insights are based on the author's membership in the Secretary-General Group of Experts for Cambodia and the Secretary-General's Panel of Experts on Accountability in Sri Lanka. This paper was originally delivered as the John P. Humphrey Lecture in Human Rights at McGill University in September 2014.","PeriodicalId":331401,"journal":{"name":"Michigan Journal of International Law","volume":"37 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133709136","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Inciting Genocide with Words","authors":"R. Wilson","doi":"10.2139/SSRN.2439325","DOIUrl":"https://doi.org/10.2139/SSRN.2439325","url":null,"abstract":"This article calls for a rethinking of the causation element in the prevailing international criminal law on direct and public incitement to commit genocide. After the conviction of Nazi propagandist Julius Streicher at Nuremberg for crimes against humanity, the crime of direct and public incitement to commit genocide was established in the UN Convention on the Prevention and Punishment of Genocide in 1948. The first (and thus far, only) convictions for the crime came fifty years later at the International Criminal Tribunal for Rwanda (ICTR). The ICTR’s incitement jurisprudence is widely recognized as problematic, but no legal commentator has thus far offered an adequate solution to one central contradiction, namely the Trial Chamber’s repeated claims of a causal connection between defendants’ speech and subsequent acts of genocide. Such claims imply that the commission of genocide is relevant to determining incitement, despite the fact that incitement is an inchoate crime and therefore only the speaker’s intention matters. Drawing upon J.L. Austin’s ordinary language philosophy, the article disentangles the intention of the speaker from the consequences of speech acts. In determining incitement to commit genocide, international law might differentiate between three aspects of performative utterances, or what Austin terms the \"locutionary\" (the meaning and content), the \"illocutionary\" (its force) and the \"perlocutionary\" (the consequences) qualities of speech acts. Specific intent to commit genocide is found in the content, meaning and force of speech acts, rather than in consequences, which can be an unreliable guide to intention. By using this template, international tribunals might better distinguish modes of liability that require causation (such as instigating) from inchoate crimes such as direct and public incitement to commit genocide, where the meaning and the force of public statements is paramount. Other benefits of this approach include refocusing attention on the prevention of genocide and clarifying and narrowing the range of impermissible speech.","PeriodicalId":331401,"journal":{"name":"Michigan Journal of International Law","volume":"82 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-02-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133683570","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}