Michigan Journal of International Law最新文献

{"title":"Can Self-Regulation Work? Lessons from the Private Security and Military Industry","authors":"Daphné Richemond-Barak","doi":"10.2139/SSRN.2328446","DOIUrl":"https://doi.org/10.2139/SSRN.2328446","url":null,"abstract":"Various efforts have been undertaken in recent years to clarify the legal framework governing the outsourcing of security and military functions to private actors. While national and international legislation have made little progress, self-regulation has advanced steadily. The article provides the first normative assessment of self-regulation in the private security and military industry – and as such offers insights for other industries that are transnational in reach and under-regulated by domestic, regional, and international law. Though industry critics tend to deplore the normative 'softness' of self-regulation and its voluntary nature, it appears to have shifted behavioral norms and triggered a compliance pull. Its weakness, I argue, lies elsewhere: regrettably, emerging self-regulatory schemes in the industry focus on monitoring (as opposed to sanctioning) and on corporate accountability (as opposed to individual accountability). To overcome these limitations, I suggest the adoption of an OECD-type model of governance for the private security and military industry. The model would combine the use of regional bodies at the monitoring level with an international supervisory body at the sanctioning level. Unlike existing regulatory schemes, the proposed model has the ability to monitor and sanction both corporations and their employees – something none of the proposals currently on the table contemplates. At a time where many industries struggle to find optimal modes of governance, the Article draws attention to an industry where much creativity has been shown. Beyond the lessons learned for the regulation of war and security, the experience of the private security and military industry highlights the potential of a mode of governance that has somewhat fallen out of fashion, the benefits of involving certain non-state actors in law-making, and the need to reflect on the nature of the 'law' thus developed.","PeriodicalId":331401,"journal":{"name":"Michigan Journal of International Law","volume":"285 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-09-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122633061","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":"Technology, Ethics and Access to Justice: Should an Algorithm Be Deciding Your Case?","authors":"Anjanette Raymond, Scott J. Shackelford","doi":"10.2139/SSRN.2309052","DOIUrl":"https://doi.org/10.2139/SSRN.2309052","url":null,"abstract":"Alternative dispute resolution (ADR) systems are becoming a mainstay of legal systems around the world, especially within systems of justice suffering from significant backlogs and delay. While arbitration used to be the bastion of most commercial law disputes, today mediation is more widely used in both public and private justice systems. The growth of mediation has prompted some to consider the possibility of the wider use of online dispute resolution (ODR) platforms. However, ADR is a newer mechanism for providing justice. Because many ADR systems are in fact reducing case backlogs, the focus has been on the speed of resolution and not necessarily on procedural protections and providing justice. This occurrence demands that these systems not merely be replicated. As ADR moves online, lessons must be learned from prior implementations that ensure continued vigilance to protect essential procedural protections. In a manner similar to ADR at its inception, ODR providers often lack appropriate funding and procedural safeguards. One means address the former by reducing cost is to automate portions of the system. In fact, some argue that significant cost saving could be realized – and justice may be better served – by removing human neutrals from the equation; in other words, to fully automate justice. As ADR gains wider use, many commentators hypothesize the next generation of ADR will be an ODR platform, which will use an algorithm and possess no neutral human decision maker. Assuming this is true, (artificial intelligence dispute resolution systems already exists that not only use an algorithm, but learn from prior actors) then we must begin to ask, should a private provider of ODR be permitted to use an algorithm to dispense justice? What public policy and ethical issues demand consideration?This Article seeks to respond to these issues, by: (1) exploring current needs in terms of improving access to justice; (2) analyzing existing systems that use online platforms to facilitate dispute resolution; (3) using case examples to highlight the potential for the widening use of ODR; (4) considering if these systems contribute to an increase in access to justice in low-value disputes; and (5) suggesting potential pitfalls that may arise if ODR is not regulated in a manner that ensures fair and impartial systems. Ultimately, we argue that an effective and ethical ODR platform requires the use of algorithms to settle the more common disputes, but that due process protections are required to help ensure against bias and improves access to justice.","PeriodicalId":331401,"journal":{"name":"Michigan Journal of International Law","volume":"18 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-08-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131982017","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":"Targeting and the Concept of Intent","authors":"J. Ohlin","doi":"10.2139/SSRN.2215088","DOIUrl":"https://doi.org/10.2139/SSRN.2215088","url":null,"abstract":"International law generally prohibits military forces from intentionally targeting civilians; this is the principle of distinction. In contrast, unintended collateral damage is permissible unless the anticipated civilian deaths outweigh the expected military advantage of the strike; this is the principle of proportionality. These cardinal targeting rules of international humanitarian law are generally assumed by military lawyers to be relatively well settled. However, recent international tribunals applying this law in a string of little-noticed decisions have completely upended this understanding. Armed with criminal law principles from their own domestic systems, often civil law jurisdictions, prosecutors, judges and even scholars have progressively redefined what it means to “intentionally” target a civilian population. In particular, these accounts rely on the civil law notion of dolus eventualis, a mental state akin to common law recklessness that differs in at least one crucial respect: it classifies risk-taking behavior as a species of intent.This problem represents a clash of legal cultures. International lawyers trained in civil law jurisdictions are nonplussed by this development, while the Anglo-American literature on targeting has all-but-ignored this conflict. But when told of these decisions, U.S. military lawyers view this “reinterpretation” of intent as conflating the principles of distinction and proportionality. If a military commander anticipates that attacking a building may result in civilian casualties, why bother analyzing whether the collateral damage is proportional? Under the dolus eventualis view, the commander is already guilty of violating the principle of distinction. The following Article voices skepticism about this vanguard application of dolus eventualis to the law of targeting, in particular by noting that dolus eventualis was excluded by the framers of the Rome Statute and was nowhere considered by negotiators of Additional Protocol I of the Geneva Convention. Finally and most importantly, a dolus eventualis-inspired law of targeting undermines the Doctrine of Double Effect, the principle of moral theology on which the collateral damage rule rests. At stake is nothing less than the moral and legal distinction between terrorists who deliberately kill civilians and lawful combatants who foresee collateral damage.","PeriodicalId":331401,"journal":{"name":"Michigan Journal of International Law","volume":"35 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-02-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128926645","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":"Humanity & National Security: The Law of Mass Atrocity Response Operations","authors":"Keith A. Petty","doi":"10.2139/SSRN.2120940","DOIUrl":"https://doi.org/10.2139/SSRN.2120940","url":null,"abstract":"As the world watches civilian slaughter in Syria, the United States is refining a whole of government approach to prevent and respond to genocide and other atrocity crimes. Military intervention under the recently developed concept of Mass Atrocity Response Operations (MARO) will certainly be included as part of any planning contingency, following diplomatic, economic, and multilateral actions. The current state of international law, however, only permits the use of force, to prevent atrocity crimes or for any other reason, if authorized by the UN Security Council (UNSC) or in self-defense. When the UNSC fails to act — as it has so often in the past — any MARO action taken by a State or group of States without a self-defense justification will be highly contentious and likely unlawful. As a result, political paralysis ensues and mass atrocities continue apace. Witness Assad’s massacre. This article argues that individual States or groups of States must have the authority to intervene to halt atrocity crimes, even without UNSC approval. Initially, the historical State-centric legal regime, including the UN framework, has proven incapable of effectively dealing with widespread human rights violations. As a result, the international community is embarking on a civilian centric approach, including the concept of Responsibility to Protect (R2P), which has contributed to the erosion of State sovereignty and fostered the legitimacy — if not legality — of unilateral action. In order to overcome legal obstacles to protecting civilians from slaughter, U.S. decision-makers must take the lead in developing norms that will effectively halt ongoing atrocities through a discursive process at the international and domestic level, and, if necessary, through transgression of existing law. Besides outlining steps to develop a positive or customary legal norm, this article prescribes a principled threshold for MARO application, which will lead to greater international acceptance of this strategy and, ultimately, the effective arrest of ongoing atrocities.","PeriodicalId":331401,"journal":{"name":"Michigan Journal of International Law","volume":"41 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2012-07-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123427295","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":"Conceptions of Civil Society in International Law-Making and Implementation: A Theoretical Framework","authors":"Laura G. Pedraza-Fariña","doi":"10.2139/SSRN.2017312","DOIUrl":"https://doi.org/10.2139/SSRN.2017312","url":null,"abstract":"The wave of civil uprisings that has swept the Middle East and North Africa has placed fostering civil society participation high on the agenda of national governments and international organizations. Despite widespread appeals to civil society engagement, however, the term “civil society” is deeply ambiguous: behind it lie conflicting normative values and commitments. This renewed commitment to civil society participation in democratic governance makes it all the more pressing to understand these different normative conceptions of civil society and the often-conflicting prescriptions that flow from them.In this article, I develop a theoretical framework that disaggregates civil society organizations into their possible functions and purposes, ranging from apolitical and individualistic to policy-oriented and state-integrated. I then argue that five groups of theories of civil society, each espousing different value systems, map onto this framework, providing strikingly different answers to fundamental questions, such as: Why should international organizations and national governments encourage civil society participation? Which civil society actors should participate? Which institutional designs best foster such participation and result in successful implementation? Does civil society participation contribute to or detract from the legitimacy of international organizations? Applying the normative framework to a concrete case study (the regime to monitor the UN Declaration of Commitment on HIV/AIDS), I then detail how choosing one theoretical interpretation of civil society over another leads to different prescriptive outcomes. I show how these five groups of theories suggest five different monitoring regime designs: (1) delegation to market-ordered, apolitical private associations, (2) deference to the state, (3) participation of minority voices, (4) criticism of state action, and (5) collaboration among all stakeholders. In the final part of this article I engage normatively with the debate regarding the legitimacy of international organizations. I show how the theoretical framework I propose helps illuminate the implicit conceptions of civil society found in both celebratory and skeptical positions towards civil society’s legitimizing role. I then propose an inclusive-contestatory theory of civil society that requires the creation of three spaces of deliberation (local, bridging, and comprehensive). I argue that such a theory provides the best justification and framework for civil society participation in international governance.","PeriodicalId":331401,"journal":{"name":"Michigan Journal of International Law","volume":"30 5","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2012-03-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132609554","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":"Contractualism in the Law of Treaties","authors":"O. Dajani","doi":"10.2139/SSRN.2038463","DOIUrl":"https://doi.org/10.2139/SSRN.2038463","url":null,"abstract":"The Vienna Convention on the Law of Treaties, provides that “[a] treaty is void” if it has been “procured by the threat or use of force in violation of the principles embodied in the Charter of the United Nations” or if it “conflicts with a peremptory norm of general international law” – i.e., jus cogens. In the more than three decades since the Vienna Convention entered into force, however, neither of these provisions has been successfully invoked even once to challenge the validity of a treaty. In this Article, I undertake to explain why that is so – and why it should concern us. I argue that constraints on contractual freedom serve functions as critical to the law of treaties as they are to the law of contracts in domestic legal systems. But while such constraints won recognition in Vienna Convention, the procedures established by the Convention for their enforcement are radically contractualist: the International Court of Justice lacks jurisdiction over treaty invalidity claims unless the parties have consented to the Convention’s dispute resolution mechanism; moreover, third parties lack standing to challenge the validity of a treaty that was coerced or conflicts with peremptory norms, even though these rules implicate interests shared by the international community as a whole. This procedural framework saps the rules of much of their mandatory effect. Although a number of features of the international legal system make it unlikely in the foreseeable future that mandatory rules will serve all of the functions at the international level that they have come to serve in domestic law, I submit that some of their functions are of particular importance to international law. Accordingly, because post-hoc judicial invalidation of agreements – the primary means employed by domestic jurisdictions for enforcing mandatory rules – is ill suited to the decentralized structure of the international legal system, the international community should promote adherence to them through individual and collective action by states prior to the conclusion of treaties and through political, as well as judicial, processes and institutions.","PeriodicalId":331401,"journal":{"name":"Michigan Journal of International Law","volume":"218 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2012-02-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116637075","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":"Shared Responsibility in International Law: A Conceptual Framework","authors":"A. Nollkaemper, Dov Jacobs","doi":"10.2139/SSRN.1916575","DOIUrl":"https://doi.org/10.2139/SSRN.1916575","url":null,"abstract":"This paper explores the phenomenon of the sharing of international responsibilities among multiple actors who contribute to injury to third parties. It examines the manifestations of shared responsibility, identifies the normative questions that it raises, assesses its possible consequences for international law and legal doctrine and sets forth a conceptual framework that allows us to analyze questions of shared responsibility. By doing so, the paper lays out the foundations, scope and ambitions of the SHARES Project - a five-year research project funded by the European Research Council and carried out by a research group at the Amsterdam Center for International Law.The paper more particularly explores the current framework of international state responsibility, how it can apply to situations of shared responsibility and what are its limits. It then suggests revisiting the foundations of international responsibility and proposes, in light of its public/private nature and objectives to move away from a unitary to differentiated regimes of international responsibility. It is within this new framework that some key normative questions, both substantial and procedural, that arise in situations of shared responsibility are discussed (joint and several liability, relationship between multiple wrongdoers, changes to the bilateral nature of international dispute settlement). The paper concludes with a 'semantic toolbox' of shared responsibility, defining concepts such as 'shared accountability', 'shared attribution or 'shared liability' which will provide a useful point of reference for subsequent research on the topic.","PeriodicalId":331401,"journal":{"name":"Michigan Journal of International Law","volume":"10 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2011-08-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116050860","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 Sounds of Silence: Are U.S. Arbitrators Creating Internationally Enforceable Awards When Ordering Class Arbitration in Cases of Contractual Silence or Ambiguity?","authors":"S. Strong","doi":"10.2139/SSRN.1359353","DOIUrl":"https://doi.org/10.2139/SSRN.1359353","url":null,"abstract":"Arbitrators in the United States are often required to construe arbitration agreements that are silent or ambiguous as to class treatment to determine whether class proceedings are contractually permitted. However, it is unclear whether arbitrators are creating an internationally enforceable award when they decide that class arbitration is appropriate in such circumstances. This Article addresses a gap in the scholarly literature by comparing interpretive methodologies used by U.S. arbitrators to those used by international arbitrators to determine whether and to what extent U.S.-based class awards are enforceable outside the United States. Since many courts and arbitrators have claimed an analogy between consolidated and class arbitration, the Article also considers whether such an analogy is appropriate as a matter of law and policy to identify whether the traditional disinclination to order consolidation can or should be extended to class proceedings. This second portion of the Article is applicable to both domestic class arbitrations and international proceedings, since arbitrators in both contexts must face this issue. Finally, the Article discusses whether class arbitration can, as critics have claimed, be considered a \"uniquely American\" device. In the end, the Article concludes that class awards should be granted the same presumption of enforcement that is given to bilateral awards under the New York Convention, even when the arbitration agreement is silent or ambiguous about class treatment.","PeriodicalId":331401,"journal":{"name":"Michigan Journal of International Law","volume":"17 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2009-03-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133372043","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":"Not Just Doctrine: The True Motivation for Federal Incorporation and International Human Rights Litigation","authors":"Daniel Abebe","doi":"10.2139/SSRN.1610190","DOIUrl":"https://doi.org/10.2139/SSRN.1610190","url":null,"abstract":"The legal status of international human rights litigation under the Alien Tort Statute (ATS) has been the subject of much debate, culminating in the Supreme Court’s decision in Sosa v. Alvarez- Machain, 542 U.S. 692 (2004). The debate has been almost exclusively doctrinal and has focused on the Judiciary Act of 1789, the historical treatment of the law of nations as general or federal common law, the evolution of the Supreme Court’s international law jurisprudence, and the integration of customary international law (CIL) into the domestic legal system. This Article argues that the focus on doctrine masks underlying international relations theory assumptions that are the true motivations of the federal incorporation of CIL and international human rights litigation under the ATS. One cannot evaluate the desirability of the federal incorporation of CIL and international human rights litigation in U.S. courts without having a theory of the operation of the international system, the motivation for state behavior in international politics, and the efficacy of international law as a coercive instrument. Proponents of the federal incorporation of CIL and international human rights litigation implicitly rely on social constructivism, democratic peace theory, and institutionalism — international relations theories that motivate a universalist theory of international law. The universalist theory holds that international law has an independent, exogenous affect on state behavior. Since States obey international law out of legal obligation, universalists tend to encourage the greater integration of CIL into domestic legal regimes and the use of CIL to improve human rights practices around the world. Therefore, the desirability and efficacy of the federal incorporation of CIL and international human rights litigation under the ATS depends on the explanatory power of specific international relations theories and the strength of the universalist theory as the appropriate conception of international law. This Article directly engages the universalist theory of international law and the underlying international relations assumptions upon which proponents of federal incorporation and international human rights litigation under the ATS rely. The Article examines a competing international relations theory and alternative conception of international law that views compliance as a function of state interests rather than of legal obligation. Working from this perspective, the Article provides a framework to evaluate the desirability of the federal incorporation of CIL and international human rights litigation in U.S. courts. The Article concludes that international human rights litigation under the current legal regime would likely complicate the achievement of the United States’ normative and strategic foreign policy goals. Given the executive’s institutional competencies, constitutional prerogatives and resource advantages, it is the branch best-placed to determine wh","PeriodicalId":331401,"journal":{"name":"Michigan Journal of International Law","volume":"13 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2008-08-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127202414","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 Spy Who Came in from the Cold War: Intelligence and International Law","authors":"S. Chesterman","doi":"10.1093/ACPROF:OSOBL/9780199674954.003.0001","DOIUrl":"https://doi.org/10.1093/ACPROF:OSOBL/9780199674954.003.0001","url":null,"abstract":"International law has traditionally had little to say on the subject of intelligence — in large part because outraged rhetoric has long been contradicted by widespread practice. This article surveys efforts to regulate the collection of intelligence in international law before turning to more recent checks on the manner in which intelligence has been invoked in international organizations. Long a \"dirty word\" within the United Nations, intelligence is now being used to justify military strikes, target financial sanctions, and indict war criminals. While there is little prospect for limiting collection of intelligence beyond activities that can be physically intercepted or prevented, increasing recourse to intelligence in multilateral forums is beginning to impose procedural constraints on the purposes for which that intelligence may be employed.","PeriodicalId":331401,"journal":{"name":"Michigan Journal of International Law","volume":"7 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2007-03-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127977801","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}