Emory International Law Review

Volume 25Issue 1

25 Years of Student Scholarship and Editorship for the Emory International Law Review

David J. Bederman | 25 Emory Int'l L. Rev. 1 (2011)

While I have written elsewhere about the influence of both student-edited and professional journals of international law, it is a distinct honor and privilege for me to write this forward of the twenty-fifth volume of the Emory International Law Review. I have seen lots of changes in the way this student-edited international law journal has approached its subject—and its audience—for a quarter of a century. I am proud that I, along with my faculty colleagues at Emory Law School, have assisted in the Review’s remarkable record of editorial achievement, while always respecting the Review’s editorial autonomy. I truly believe that this is the real legacy that the Emory International Law Review has produced for the past quarter-century and will continue to do so for the next generation of international law practitioners and scholars.

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Symposium in Miniature: Religious Symbols on Government Property

Lift High the Cross?: Contrasting the New European and American Cases on Religious Symbols on Government Property

John Witte, Jr. & Nina-Louisa Arold | 25 Emory Int'l L. Rev. 5 (2011)

A comparative anthropologist could not have asked for a better script: two high profile cases, one before the European Court of Human Rights, the other before the U.S. Supreme Court, each involving challenges to traditional displays of crosses on government property. The European high court struck down the cross. The American high court upheld the cross. Both cases are procedurally complicated and are factually distinguishable. Together, these two Articles illustrate some of the complexity of the legal issues surrounding the place of religious symbols on government land, and how serious scholars and judges can take opposing views and marshal reasoned arguments for each of them.

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How Salazar v. Buono Synthesizes the Supreme Court’s Establishment Clause Precedent into a Single Test

Adam Linkner | 25 Emory Int'l L. Rev. 57 (2011)

Atop Sunrise Rock, a large Latin cross casts a shadow over the Mojave National Preserve in Southern California. This cross seems oddly out of place. It is located in a national preserve that encompasses 1.6 million acres. There is no sign explaining why it is there. The cross sits alone in the middle of this vast public land. Does its presence on public land constitute a violation of the First Amendment Establishment Clause? Would the answer change if the tiny parcel of land under the cross were transferred to a private party? If so, would the reasons why the government transferred the land matter? This Article applies the inside/outside test to the facts of Salazar as the district court is required to do on remand and concludes that the district court should strike down the land-sale statute because it violates the Establishment Clause.

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Public Schools, the Italian Crucifix, and the European Court of Human Rights: The Italian Separation of Church and State

Andrea Pin | 25 Emory Int'l L. Rev. 95 (2011)

The recent judgments of the European Court of Human Rights (“ECHR” or “Court”) with regard to the presence of the Catholic symbol of the crucifix in Italian public schools are just the latest episodes of the ongoing juridical and political struggle for the secularization of the Italian state. This debate involves the interpretation and the enactment of the Italian Constitution as well as the political and cultural trends that shape the Italian public debate about the public role of religion. This Article aims to highlight why and how opinions about the relationship between church and state conflict within the Italian legal culture, as well as between the Italian mainstream and the ECHR’s attitude in the first degree.

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Making WTO Remedies Work for Developing Nations: The Need for Class Actions

Phoenix X.F. Cai | 25 Emory Int'l L. Rev. 151 (2011)

This Article eschews legislative solutions that require lengthy negotiations and ratification of amendments in favor of a creative legal strategy solution that can be readily implemented unilaterally by developing nations. This Article proposes the use of “class actions” by developing nations as a litigation strategy. The term class action is used as a metaphor. It is not meant as an explicit reference of Rule 23 of the Federal Rules of Civil Procedure. Indeed, any such explicit reference or incorporation of Rule 23 would vitiate one of the primary benefits of this proposal—the ease of implementation without formal amendments to WTO documents.

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The Use of International Law in U.S. Constitutional Adjudication

Rex D. Glensy | 25 Emory Int'l L. Rev. 197 (2011)

The Constitution of South Africa mandates that its Supreme Court use international law to determine the substantive meaning of its own Bill of Rights. The Constitution of the United States does no such thing. Nevertheless, from time to time, the U.S. Supreme Court has taken it upon itself to use international law as persuasive authority to interpret various provisions of the U.S. Constitution. Indeed, the Court has done so in very high profile cases such as Lawrence v. Texas, where the Court struck down a Texas anti-sodomy statute as an unconstitutional violation of due process. The high visibility of the cases in which the Court has called upon international law to determine the proper meaning of certain domestic constitutional provisions has brought a lot of attention to this practice. This Article proposes a method for the selection of international law within the framework of U.S. domestic constitutional interpretation.

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Hugo Grotius in the Contemporary Memory of International Law: Secularism, Liberalism, and the Politics of Restatement and Denial

John D. Haskell | 25 Emory Int'l L. Rev. 269 (2011)

Hugo Grotius frequently occupies the title, “‘father’ of international law.” While the origins of professional lineage were a source of professional and personal conflict for jurists in the nineteenth century, scholars today tend to treat Grotius as either a symbolic marker of changing historical thought, or the symbolic figure of a style or school of global governance. In the first instance, Grotius is important because he made a methodological leap in one form or another from a theological to a secular frame of jurisprudential thinking, and in so doing, characterized the dilemmas of governance in familiar terms to modernity. For other authors, the legacy of Grotius is not directly this shift from ecclesiastic to secular authority, but rather that his efforts are remembered to spark the political aspiration, implied to be at the core of international law itself, towards a more liberal tolerance of difference and a sentiment of restraint towards over-aggrandizing political agendas.

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Theorizing and Tracing the Legal Dimensions of a Control Framework: Law and the Arab-Palestinian Minority in Israel’s First Three Decades (1948–1978)

Ilan Saban | 25 Emory Int'l L. Rev. 299 (2011)

This Article analyzes the main ways in which Israeli law was involved in the lives of Israel’s Arab-Palestinian minority in the first thirty years of Israeli statehood—from its establishment in 1948 until the period soon after the first Land Day in 1976. This is a detailed and complex story, which requires a theoretical or analytical key to cut through the complexity and sort out the abundance of data by relevancy and importance. The potential theoretical contribution of this Article derives from the effort to develop such a theoretical or analytical key, and from an attempt to gain a deeper understanding of the ways in which law is involved in the intriguing stability of certain exploitive intercommunal relationships.

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Requiem for a Pipedream: Oil, The World Bank, and the Need for Human Rights Assessments

Dustin N. Sharp | 25 Emory Int'l L. Rev. 379 (2011)

The revenues associated with oil and other extractive industries projects in sub-Saharan Africa—particularly as they are contrasted with the living conditions of those for whom these revenues could provide the greatest benefit—raise the hope of using natural resources to achieve significant poverty alleviation. From the impoverished villages of the Niger Delta to south Sudan, however, oil wealth has rarely led to widespread poverty alleviation. More often than not, the revenues that should in theory be a great boon to development are in practice associated with disastrous human rights fallout as living standards actually decrease and governance indicators worsen, a phenomenon known as the “resource curse.” This Article analyzes the various “lessons learned” that have been articulated in the wake of the Chad-Cameroon pipeline project’s collapse, and argues that many of them miss the mark.

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Playing Catch-up: Proposing the Creation of Status-Based Regulations to Bring Private Military Contractor Firms Within the Purview of International and Domestic Law

Huma T. Yasin | 25 Emory Int'l L. Rev. 411 (2011)

Part I of this Article analyzes the shortcomings of both international and domestic law regulating PCMF conduct through examining the Nisour Square massacre aftermath. Part II analyzes current international and domestic law to determine whether PCMFs fit within an existing legal framework. In particular, Part II engages a brief historical analysis of the law of mercenarism, both drawing parallels and distinguishing between the legal definition of mercenaries and PCMFs. Part III examines the convergence of three novel legal developments. Part IV provides a framework to categorize PCMFs, which exhibit both military and corporate characteristics. Part V discusses contemporary legal scholarship and analyzes recommendations to solve the PCMF accountability gap. Lastly, Part VI presents an alternative legal framework, concisely defining the status of PCMFs and delineating domestic and international mechanisms of liability and protection.

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It Was the First Strike of Bloggers Ever: An Examination of Article 10 of the European Convention on Human Rights as Italian Bloggers Take a Stand Against the Alfano Decree

Janelle L. Cornwall | 25 Emory Int'l L. Rev. 499 (2011)

This Comment addresses the human rights issues presented by the Alfano Decree in the age of the internet as a medium to publish ideas and information for public consumption. Specifically, what constitutes an infringement of the fundamental human right of freedom of expression, as recognized in Article 10(1) of the Convention? Part I provides an overview of the rise of the blog and the blogger as a citizen journalist as well as a discussion of the relevant provisions of the Alfano Decree and the Italian Prime Minister’s influence on the media in the country. Part II begins by summarizing the Convention and the European Court of Human Rights (“ECHR”). Part II then utilizes the freedom of speech issue presented by the Alfano Decree to analyze ECHR case law for its interpretation of Article 10. Finally, Part III advocates against the approval of the Alfano Decree.

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FIFA Transfer Regulations and UEFA Player Eligibility Rules: Major Changes in European Football and the Negative Effect on Minors

Christina Lembo | 25 Emory Int'l L. Rev. 539 (2011)

Behind the European love affair with football—the packed stadiums, the rowdy fans, the time off from work to watch important matches—lies a significant dilemma: on one hand, fans want their teams to play at the highest competitive level, but on the other, they care about the backgrounds and nationality of the players on their locally-based teams. This dilemma has led to the promulgation of various transfer regulations by the governing bodies of international football that control a player’s ability to transfer to a foreign team. The changing of these transfer regulations over time, however, has had a negative impact on many minors who play football. In particular, European football clubs have exploited various loopholes in the transfer regulations to recruit young foreign players and retain young local players. This Comment looks at the evolution of the regulations governing player mobility and its impact on minors.

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Reformasi and Public Corruption: Why Indonesia’s Anti-corruption Agency Strategy Should Be Reformed to Effectively Combat Public Corruption

Joanna MacMillan | 25 Emory Int'l L. Rev. 587 (2011)

Indonesia was once at the “forefront of Asia’s economic miracle.” Under President Suharto, Indonesia experienced “impressive gains in overall economic growth.” However, poverty remained pervasive, and corruption had “grown along with the economy.” In 1998, Transparency International’s Corruption Perceptions Index (“CPI”) ranked Indonesia as number eighty out of eighty-five countries, placing the nation as one of the most corrupt countries in the world. Economic distortions caused by public corruption in Indonesia were a major factor contributing to the Asian Financial Crisis of 1998, leading to massive riots and a “total meltdown of governance.” This Comment evaluates the KPK’s current strategy and determines that the agency’s framework needs to be revised to improve Indonesia’s possibility of successful corruption reform.

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The Cuban Conundrum: Proposing an International Trademark Registry for Well-Known Foreign Marks

Mindy Pava | 25 Emory Int'l L. Rev. 631 (2011)

The analysis of the U.S.-Cuba trademark disputes can provide guidance for the future in weighing how a country should balance its international politics with its obligations under intellectual property law. This Comment argues that countries set a dangerous precedent when they rely on temporary political considerations to block well-known foreign trademarks or interfere with internationally agreed-upon intellectual property rights. This Comment searches for a feasible solution that would prevent a country from violating international intellectual property treaties by registering its own version of a well-known foreign mark—thus leading to consumer confusion about the source and origin of the mark—simply because a political relationship has deteriorated between the country of registration and the country of the foreign mark’s origin. Because avoidance of consumer confusion is the ultimate purpose of trademark law, this Comment advocates for an international, centralized registration system for well-known foreign trademarks.

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“But the Americans Made Me Do It!”: How United States v. UBS Makes the Case for Executive Exhaustion

Anand Sithian | 25 Emory Int'l L. Rev. 681 (2011)

Currently the Third Restatement of Foreign Relations Law (“Third Restatement”) advocates a five-part balancing test for courts to apply when contemplating ordering discovery on a party that would require violation of another nation’s laws. This Comment uses the recent tax investigation into UBS and its account holders as a case study to argue that the alternative means factor from the Third Restatement should be a mandatory step for Executive Branch agencies to exhaust before they can petition a court to compel disclosure of foreign discovery that would require the defending party to violate foreign law. The application of executive exhaustion will prevent courts from having to engage in the Third Restatement’s balancing test. By avoiding the Third Restatement’s balancing test, a court can avoid placing parties in a catch-22—following one state’s laws at the expense of violating those of another state.

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The Enforcement Loophole: Judgment-Recognition Defenses as a Loophole to Corporate Accountability for Conduct Abroad

Christina Weston | 25 Emory Int'l L. Rev. 731 (2011)

This Comment analyzes the “enforcement loophole” that will enable Chevron to fight enforcement of the Lago Agrio court’s judgment “for decades into the future.” The enforcement loophole is the corporate defendant’s practice of using the standard defenses to foreign country judgment recognition available in the United States for an unintended purpose: to circumvent accountability abroad. After obtaining an FNC dismissal to a foreign tribunal where the corporate defendant has no major assets, the corporate defendant then has the opportunity to tailor the foreign litigation so that it satisfies one of the exceptions to recognition in the United States. As a result, even though foreign-country judgments are generally recognized on nearly the same basis as sister-state judgments, the enforcement exceptions afford corporate defendants an opportunity to manipulate the foreign litigation so that the foreign-country judgment is unenforceable in the United States.

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Book Review

Principles of Counter-Terrorism Law

Laurie R. Blank | 25 Emory Int'l L. Rev. 771 (2011)

In the nearly ten years since the attacks of September 11, 2001, the legal framework to address terrorism and terrorist attacks has grown, stretched, and been tested from all angles. The study of counter-terrorism and the law applicable to both terrorist acts and responses to terrorism has, naturally, become widespread at law schools and other institutions of higher learning across the United States and worldwide. Principles of Counter-Terrorism Law is a useful and comprehensive addition to this fast-moving field, where new issues arise, cases are decided, and responses are debated nearly daily. It is concise and easily digested, as appropriate for a hornbook, yet it also offers students and other readers a thorough analysis and grasp of the full range of issues triggered by terrorism and counter-terror operations and efforts.

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