Michigan Journal of International Law最新文献

{"title":"Article 9 of the Constitution of Japan and the Use of Procedural and Substantive Heuristics for Consensus","authors":"Mark Chinen","doi":"10.2139/SSRN.1357622","DOIUrl":"https://doi.org/10.2139/SSRN.1357622","url":null,"abstract":"Japan is considering changes to its constitution, including Article 9, which prohibits it from maintaining a military force. If amendments are made, it would mark the first time the Japanese constitution has been amended since its establishment in 1947. I examine the debates on Article 9 using scholarship on constitutions as providing heuristics for decision-making. Constitutions help overcome the problems of emotion and time-inconsistency. They also enable societies of different deliberative groups to avoid the pitfalls of deliberation by requiring groups to interact with one another and by providing opportunities for compromise through what Cass Sunstein refers to as incompletely theorized agreement. Drawing on work from J.M. Balkin, I argue such strategies and concepts share features common to all heuristic devices: they are cumulative, multi-functional, recursive, and lead to unintended results. This theory jibes well with the process and substance of the Japanese debates. The debates on Article 9 are taking place within and among deliberative groups in Japan. The formal constitutional requirements for amendment combine with features in Japanese society to require the various groups to interact with one another. The cumulative, multi-functional, and recursive nature of heuristics emerge in the themes in the debate. These features make agreement hard because the deliberative groups are familiar with the arguments being made for and against amending Article 9. Yet, the same concepts could enable incompletely theorized agreement on key issues. Finally, the net effect of these tools is that possible solutions to the amendment debate will solve some issues now raised by Article 9, but will create others.","PeriodicalId":331401,"journal":{"name":"Michigan Journal of International Law","volume":"13 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2006-02-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132828940","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":"Saving Customary International Law","authors":"Andrew T. Guzman","doi":"10.2139/SSRN.708721","DOIUrl":"https://doi.org/10.2139/SSRN.708721","url":null,"abstract":"The theory of international law has a variety of problems, but none are more glaring than those present in customary international law (CIL). Though CIL is one of the two main sources of international law, it is both poorly understood and under-theorized. Attracted by this weakness, critics have sought to demonstrate that CIL is irrelevant or non-existent. This Article lays a solid theoretical foundation for CIL and responds to critics by showing that CIL can be a meaningful influence on state behavior. Consistent with much of the current writing on international law, including the strongest criticisms in both legal and political science scholarship, the Article makes standard rational choice assumptions about state behavior. It is assumed that states are self-interested and that they will comply with international law only when it is in their interest to do so. It is shown how, under these assumptions CIL can exist and can influence state behavior. What emerges is a robust and coherent theory of CIL. The theory is then used to examine the doctrine of CIL. Where existing views of CIL are consistent with the theory, the Article provides them with a stronger and more satisfying theoretical justification. For example, the theory provides a novel and more persuasive explanation for the persistent objector doctrine. Where existing perspectives are in conflict with the theoretical approach, the Article explains how and why current views should be adapted. For example, the Article argues that opinio juris should be at the center of our understanding of CIL, and that state practice, traditionally considered the second requirement for the establishment of a rule of CIL, should be viewed only as evidence of opinio juris rather than an independent requirement. In addition to the opinio juris and practice requirements, the article examines the most salient doctrinal issues in CIL, including the relationship between treaties and CIL formation, the persistent and subsequent objector doctrines, the role of new states, instant custom, regional or special custom, and the relationship between jus cogens norms and CIL.","PeriodicalId":331401,"journal":{"name":"Michigan Journal of International Law","volume":" 39","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2005-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"113951525","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":"Beyond state sovereignty : the protection of cultural heritage as a shared interest of humanity","authors":"F. Francioni","doi":"10.4324/9781315254135-15","DOIUrl":"https://doi.org/10.4324/9781315254135-15","url":null,"abstract":"","PeriodicalId":331401,"journal":{"name":"Michigan Journal of International Law","volume":"9 10","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2004-12-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132531020","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":"Envisioning A Global Legal Culture","authors":"C. Koch","doi":"10.2139/SSRN.376760","DOIUrl":"https://doi.org/10.2139/SSRN.376760","url":null,"abstract":"This paper envisions a global legal culture. This global legal culture will interact with the national legal cultures and will fundamentally change legal practice, even ostensibly local legal practice. Thus, there is a practical imperative in contemplating this evolving legal culture for all lawyers and legal scholars. US lawyers and US legal scholars face a special urgency because we are so far behind others in recognizing the practical importance of understanding the world's legal cultures. This paper hopes to initiate reflections on the blending of legal cultures in the world arena. The paper suggests two plausible vehicles for the creation of this legal culture: The World Trade Organization's Dispute Settlement Bodies, globalizing commercial legal cultures, and the United Nations' International Court of Justice, globalizing rights. These two tribunals not only suggest plausible global adjudicative systems, if not the final versions, but already provide some real world experience. The paper relies more directly on the experience of two more developed centralizing court systems, the US federal judiciary and the European system comprising the European Union's European Court of Justice (ECJ) and European Court of Human Rights. The European tribunals offer a recent and particularly valuable experience in the merging of national laws into a larger legal culture. In addition, the ECJ demonstrates the progression of open market adjudication into adjudication of nearly all of society's issues. The paper posits a blending of civil law thinking with common law thinking in evolving a global legal culture. This approach is more than transatlantic chauvism: these two legal models have migrated around the world, for good and bad reasons, so that they cover about 70% of the world's population. Because the paper anticipates a large portion of common law readers, it begins the analysis with a treatment of foundational aspects of civil law thinking and how that thinking might translate in the design of the global legal culture. Then the paper focuses on envisioning a global legal culture bringing together common law thinking, particularly the US version, and that of the civil law. The paper attempts to identify the tensions and to suggest possible resolution of these tensions. It notes the additional complication of merging the judicial philosophies of parliamentary and presidential governmental types. Again and with emphasis, the attention to the civil law and common law models support only a potential first generation of a global legal culture. Other legal cultures surely will have impact and the creative capacity of future generations will eventually be crucial. In the end, the paper merely hopes to offer a first stage framework, seeking to lay the groundwork for and encourage thinking about the dimensions of an emerging global legal culture.","PeriodicalId":331401,"journal":{"name":"Michigan Journal of International Law","volume":"35 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2003-02-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133817736","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":"Let One Hundred Flowers Bloom, One Hundred Schools Contend: Debating Rule of Law in China","authors":"R. Peerenboom","doi":"10.2139/SSRN.316962","DOIUrl":"https://doi.org/10.2139/SSRN.316962","url":null,"abstract":"Historically, the modern conception of rule of law is integrally related to the rise of liberal democracy in the West. Indeed, for many, \"the rule of law\" means a liberal democratic version of rule of law. There is, however, little support for liberal democracy, and hence a liberal democratic rule of law, among state leaders, legal scholars, intellectuals or the general public in China. Accordingly, if we are to understand the likely path of development of China's system, and the reasons for differences in its institutions, rules, practices and outcomes in particular cases, we need to rethink rule of law. We need to theorize rule of law in ways that do not assume a Western liberal democratic framework, and explore alternative conceptions of rule of law that are consistent with China's own circumstances. To that end, I describe four competing thick conceptions of rule of law: Statist Socialism, Neo-Authoritarian, Communitarian and Liberal Democratic. In addition, I contrast all four variants of rule of law with rule by law, and suggest that China is in transition from rule by law to some version of rule of law, though probably not a Liberal Democratic one. I then address a number of thorny theoretical issues that apply to rule of law theories generally and more specifically to the applicability of rule of law to China. For instance, can the minimal conditions for rule of law be sufficiently specified to be useful? Should China's legal system at this point be described as rule by law, as in transition to rule of law or as an imperfect rule of law? How do we know that the goal of legal reforms in China is rule of law as opposed to a more efficient rule by law or some third alternative? Given the many different interpretations of rule of law, should we just stop referring to rule of law altogether, or at least reserve rule of law for Liberal Democratic rule of law states? Finally, turning from theory to practice, are non-Liberal Democratic rule of law systems sustainable?","PeriodicalId":331401,"journal":{"name":"Michigan Journal of International Law","volume":"11 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2002-06-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"117054779","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 Asbestos Case and Dispute Settlement in the World Trade Organization: The Uneasy Relationship Between Panels and the Appellate Body","authors":"S. M. Cone","doi":"10.2139/SSRN.310002","DOIUrl":"https://doi.org/10.2139/SSRN.310002","url":null,"abstract":"This article deals with dispute settlement in the World Trade Organization (WTO) and, in particular, with the relationshiop between panels and the Appellate Body. Its point of departure is the Asbestos case initially decided by a WTO panel in September 2000 and, on appeal, by the WTO Appellate Body in March 2001.","PeriodicalId":331401,"journal":{"name":"Michigan Journal of International Law","volume":"20 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2002-06-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127732157","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 International Bankruptcy Possible","authors":"Frederick Tung","doi":"10.2139/SSRN.309779","DOIUrl":"https://doi.org/10.2139/SSRN.309779","url":null,"abstract":"Although international business firms proliferate, there is no international bankruptcy system. Instead, bankruptcy law remains a matter for individual states. The failure of a multinational firm therefore raises difficult questions of conflict and cooperation among national bankruptcy laws. In the discourse over the appropriate design for an international bankruptcy system, universalism has long held sway as the dominant idea, embraced nearly universally by bankruptcy scholars. Universalism offers a simple and elegant blueprint for international bankruptcy. Under universalism, the bankruptcy regime of the debtor firm's home country would govern worldwide, enjoying global reach to treat all of the debtor's assets and claimants. Despite its conceptual dominance and appeal, universalism has yet to find vindication in any concrete policy enactments. No universalist arrangements exist. While recent challenges to universalism have emerged, the current lively debate over universalism and rival proposals focuses almost exclusively on their comparative efficiencies. This article provides a new perspective and a novel critique of universalism. Applying insights from elementary game theory and international relations theory, this Article shows that universalism suffers serious feasibility constraints: it is politically implausible and likely impossible. Even for states interested in establishing universalist arrangements, they will be unable to do so. They will find themselves in a prisoners' dilemma with no ready solution. The Article concludes that universalism holds only dubious promise as a prescription for international bankruptcy cooperation.","PeriodicalId":331401,"journal":{"name":"Michigan Journal of International Law","volume":"88 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2002-05-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123992967","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":"An Empirically Based Comparison of American and European Regulatory Approaches to Police Investigation","authors":"C. Slobogin","doi":"10.1007/978-1-4419-9196-6_3","DOIUrl":"https://doi.org/10.1007/978-1-4419-9196-6_3","url":null,"abstract":"","PeriodicalId":331401,"journal":{"name":"Michigan Journal of International Law","volume":"236 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2001-11-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131472702","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":"Labor Rights, Globalization and Institutions: The Role and Influence of the Organization for Economic Cooperation and Development","authors":"James E. Salzman","doi":"10.2139/SSRN.259911","DOIUrl":"https://doi.org/10.2139/SSRN.259911","url":null,"abstract":"In exploring the promotion of labor rights by international governmental institutions, scholars have largely focused on the International Labor Organization, the WTO, and the European Union. In this well trodden field of study, though, another key IGO player has been overlooked, with little scholarly consideration given to the role of the Organization for Economic Cooperation and Development (OECD). Even those who know of the OECD focus on its well-known activities in economic spheres, rarely thinking of its role in relation to social issues, much less to labor rights. While the OECD's reports, recommendations and decisions have been discussed in a wide range of scholarship, remarkably little has been written on the institution itself. This oversight is unfortunate because the OECD has played, and continues to play, an important role outside a purely economic context. This article focuses on the OECD's role in the development of labor rights, but its findings are relevant across the breadth of the OECD's activities, from environmental protection and trade to agriculture and transport policy. It is hoped that exploration of the OECD's role in labor rights will provide a broad foundation for future work on other aspects of the institution, informing research on the operations, capacity, and potential of the OECD. The article has four sections. The first recounts the OECD's history, from its creation as the overseer of the Marshall Plan to its current prominence as global economic analyst, and explains its operations. The second section explores the OECD's influence on development of labor rights, examining the well-known OECD Guidelines for Multinational Enterprises, publications on trade and labor by the Employment, Labor and Social Affairs Directorate, and the events surrounding South Korea's accession to the OECD. Each of these activities, though quite different from one another (and, in combination, very different from other IGOs' activities), provided important spurs to the articulation and development of core labor rights. The third section presents a detailed case study of the failed negotiations at the OECD over the Multilateral Agreement on Investment (MAI). The case study provides insight both into an important event in the march toward globalization and into the role the OECD can meaningfully play in formally linking trade and labor rights. These different empirical analyses combine to inform the institutional analysis in Part IV. In reviewing instances where the OECD has proven most effective and assessing its relative strengths and weaknesses in comparison to competing IGOs, this section draws from international relations scholarship and focuses on the OECD's two distinguishing assets - its role in creating epistemic communities and influence as a conditional agenda-setter. The concluding section considers the future of the OECD, proposing how it can better meet the challenges posed by globalization in a very different world than the o","PeriodicalId":331401,"journal":{"name":"Michigan Journal of International Law","volume":"44 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2001-03-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114294161","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":"Cultural Resistance to Global Governance","authors":"J. Paul","doi":"10.2139/SSRN.272637","DOIUrl":"https://doi.org/10.2139/SSRN.272637","url":null,"abstract":"We often frame the debate over global governance as a conflict between some set of international legal norms, like free trade or human rights, something we posit as national \"culture.\" State actors and legal scholars assert cultural claims as a justification for derogating from some international legal requirement. For example, European states seek exemption from some international trade agreements prohibiting barriers to imported films of music by arguing that the imports threaten their cultural identity or industries. Japan, Norway and some indigenous nations claim a cultural right to whale that supersedes the international moratorium on whale hunting. Some theocratic or developing states claim cultural exceptions to engage in practices that otherwise contravene the international human rights of women and sexual minorities. In general, the international community does not regard practices that implicate commercial trade or environmental resources as authentically cultural. By contrast, the international community implicitly, if not always explicitly, acknowledges that gender norms are authentically cultural and therefore are entitled to great deference by international law. How and why doe we posit some social behavior as authentically cultural and when does culture trump international legal norms? This article explores how state actors and legal scholars make cultural claims in different legal contexts and suggests a linkage between the deployment of cultural exceptions and the project of globalization.","PeriodicalId":331401,"journal":{"name":"Michigan Journal of International Law","volume":"65 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2000-11-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127619490","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}