Emory International Law Review

Volume 26Issue 2
Foreword

| Emory Int'l L. Rev. i (2012)

The Editorial Board of the Emory International Law Review is pleased to present the second issue of Volume 26. This issue contains a collection of scholarly articles, written symposium pieces, and student comments, together covering a broad span of international law topics. In addition, this issue marks the second year of our renewed Recent Developments section, where we publish a collection of shorter pieces on current events in international law, which are posted online upon completion of the editing process and later included in our print edition. With this issue, the Editorial Board also reintroduces the practice of authoring a Foreword to accompany every issue. When Forewords first regularly appeared in the early volumes of the Emory International Law Review, they allowed the Editorial Board to draw major themes out of the individual pieces and provided the Editorial Board the opportunity to thank some of the individuals whose contributions help make the Emory International Law Review a success.

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Recent Developments

The Potential Extraterritorial Consequences of Akamai

Timothy R. Holbrook | 26 Emory Int'l L. Rev. 499 (2012)

Patent infringement arises when all of the limitations found in a particular claim of a patent are present in a device. For a patented system, the apparatus must have all the required components as delineated in the claim. For a patented method, all of the steps of the method must be performed. Historically, the issue of “who” was the infringer was relatively straightforward because most systems and methods were utilized in discrete, unitary settings. In the modern era, however, particularly with inventions being implemented over the Internet, the issue of “divided infringement” has arisen in two particular contexts.

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GAT, Solvay, and the Centralization of Patent Litigation in Europe

Marketa Trimble | 26 Emory Int'l L. Rev. 515 (2012)

As business has become global, so have disputes about patents, patent infringement, and patent validity. In many ongoing disputes between patent holders and alleged infringers, parties are engaging in parallel court proceedings in multiple countries to litigate infringements of parallel patents and to contest the validity of patents. Concentrating litigation involving identical inventions and identical or similar conduct into one national or multinational court could result in faster, more efficient, and more consistent enforcement of patents.

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Looking to Fill an International Regulatory Gap: Brazil Brings the Issue of Exchange Rates and Trade before the World Trade Organization

Antonia F. Pereira, Silas W. Allard | 26 Emory Int'l L. Rev. 535 (2012)

Concern over the relationship between exchange rates and trade has a long history in both international law and economics. This concern has manifested itself in two primary ways: first, as a worry about the impact of currency fluctuation on trade flows and, second, as a worry about the impact of currency manipulation on fairness in the international trading regime. While there is no consensus on how to address the problems created by the relationship of exchange rates and trade, this lack of consensus has done nothing to diminish states’ concerns over the impact of currency fluctuation and manipulation on trade.

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Stare Decisis and Certiorari Arrive to Brazil: A Comparative Law and Economics Approach

Maria Angela Jardim de Santa Cruz Oliveira, Nuno Garoupa | 26 Emory Int'l L. Rev. 555 (2012)

Two important legal reforms in court procedure have taken place in Brazil recently: súmula vinculante (all courts now have to follow the reasoning of the Supreme Court in similar cases) and requisito da repercussão geral (the Supreme Court only hears cases that are of general importance). These two procedural rules respond to a long debate in the Brazilian legal community on how to address court congestion, the heavy workload of the Brazilian Supreme Court, and the role of the higher courts in establishing case law.

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Articles

Treaty Interpretation of the Right to Life Before Birth by Latin American and Caribbean States: An Analysis of Common International Treaty Obligations and Relevant State Practice at International Fora

Ligia M. De Jesus | 26 Emory Int'l L. Rev. 599 (2012)

It has been argued that the Convention on the Rights of the Child (“CRC”) and the American Convention on Human Rights (“ American Convention” ) mandate the legalization of abortion as a human rights obligation, particularly in developing countries where abortion is considered a crime, such as in most of Latin America and the Caribbean region. However, an appropriate application of international norms of treaty interpretation reveals that these treaties actually recognize and protect the unborn child’s right to life and health in a comprehensive manner and are incompatible with the creation of abortion rights, at either the regional or international level.

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Catch Them If You Can: Compatibility of United Kingdom and United States Legislation against Financing Terrorism with Public International Law Rules on Jurisdiction

Laura Halonen | 26 Emory Int'l L. Rev. 637 (2012)

The world changed on September 11, 2001. Led by a shocked but determined United States, the international community came together in order to take collective and individual action to eradicate terrorism. An important part of this campaign has been the fight against financing terrorism, seen as a key element of terrorism itself: “Today’s terrorist advances with an Armalite in one hand and a cashbox in the other . . . . At a basic level [money] is necessary to finance operations, but it is more than that. It can become part of the momentum of terrorism itself.”

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Mirage in the Gulf?: Examining the Upsurge in FDI in the GCC and its Legal and Economic Implications for the MENA Region

Jordan E. Toone | 26 Emory Int'l L. Rev. 677 (2012)

Between 2002 and 2010, foreign direct investment (“FDI”) exploded in the Gulf Cooperation Council (“GCC”). Between 2002 and 2008 alone, FDI in the GCC increased over 3800%, outpacing both the developed and developing world by a significant margin. Although recent data suggests that FDI has declined in the GCC since 2010, scholars have yet to proffer nuanced analyses of the upsurge in FDI between 2002 and 2010.

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Symposium: International Law and the Internet: Adapting Legal Frameworks in Response to Online Warfare and Revolutions Fueled by Social Media

From Cyber Attacks to Social Media Revolutions: Adapting Legal Frameworks to the Challenges and Opportunities of New Technology

Kristen E. Tullos | 26 Emory Int'l L. Rev. 733 (2012)

In June 2010, a security firm in Belarus detected a new cyber worm on a client’s computer in Iran. As experts worked to untangle its pieces and understand its purpose, they quickly realized that the worm, called Stuxnet, was one of the most sophisticated and expensive pieces of malware ever created. Although the United States has yet to officially acknowledge responsibility for Stuxnet, the National Defense Authorization Act for Fiscal Year 2012 included provisions authorizing the military to conduct offensive operations in cyberspace.

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Click to Change: Optimism Despite Online Activism’s Unmet Expectations

Ryan Hal Budish | 26 Emory Int'l L. Rev. 745 (2012)

On May 20, 2012, in response to tweets about “blasphemous drawings,” Pakistan blocked Twitter for eight hours before the Prime Minister intervened to restore access. During that period, hundreds of Pakistanis visited Herdict, a Harvard University project for tracking Internet censorship and web blockages, and filed numerous inaccessible reports, allowing us to see blockages in real time. Similarly, when China blocked The New York Times in late October 2012, in response to a story about the wealth of Prime Minister Wen Jiabao, Herdict received several inaccessible reports from China for the news site. These events epitomize the importance of projects that track the openness of the Internet.

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Cyber Deterrence

Eric Talbot Jensen | 26 Emory Int'l L. Rev. 773 (2012)

Cyber operations by both state actors and non-state actors are increasing in frequency and severity. As nations struggle to defend their networks and infrastructure, their ability to apply the principles of deterrence to cyber activities correspondingly increases in importance.

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State Sovereignty and Self-Defense in Cyberspace: A Normative Framework for Balancing Legal Rights

Catherine Lotrionte | 26 Emory Int'l L. Rev. 825 (2012)

Today’s threats recognize no national boundaries, are connected, and must be addressed at the global and regional as well as the national levels. When warranted, [the United States] will respond to hostile acts in cyberspace as we would to any other threat to our country. All states possess an inherent right to self-defense . . . . [We recognize] that hostile acts conducted through cyberspace could compel actions under the commitments we have with our military treaty partners . . . America must also face the rapidly growing threat from cyber-attacks. Now, we know hackers steal people¿s identities and infiltrate private emails. We know foreign countries and companies swipe our corporate secrets. Now our enemies are also seeking the ability to sabotage our power grid, our financial institutions, and our air traffic control systems. We cannot look back years from now and wonder why we did nothing in the face of real threats to our security and our economy.

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Internet Freedom and the Role of an Informed Citizenry at the Dawn of the Information Age

Sascha Meinrath, Marvin Ammori | 26 Emory Int'l L. Rev. 921 (2012)

More than sixty years ago, civil rights activists realized that the most effective route to bettering our country was through mass social movements, civil disobedience, and judicial review. In law school, reading Brown v. Board of Education and Cooper v. Aaron, you might get the mistaken impression that the judicial branch was the focus of the debate, or the most important agent of change. But this litigation was a purposeful and well-thought-out facet of a far broader social movement and organizing strategy. This social movement focused on a key normative question for civil society: Who can participate in our democracy as a full citizen—with an equal vote, equal treatment under the law, equal access to education, and all the other social resources necessary to enjoy true liberty—and have a meaningful say in our government?

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Comments

From Big Love to the Big House: Justifying Anti-Polygamy Laws in an Age of Expanding Rights

Thomas Buck, Jr. | 26 Emory Int'l L. Rev. 939 (2012)

In January 2009, Canadian authorities in Bountiful, British Columbia, arrested two leaders of separate sects of the Fundamentalist Church of Jesus Christ of Latter-Day Saints (“FLDS”) on charges of polygamy. Section 293 of Canada’s Criminal Code makes polygamy a crime. The individual charges against the men were thrown out on technical grounds, but the litigation evolved into a constitutional question as to whether Canada’s criminal prohibition on polygamy was consistent with the guarantees of religious freedom, freedom of expression, freedom of association, liberty and security of person, and equality in the Canadian Charter of Rights and Freedoms (the “Charter”).

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Absolute, Restrictive, or Something More: Did Beijing Choose the Right Type of Sovereign Immunity for Hong Kong?

Yilin Ding | 26 Emory Int'l L. Rev. 997 (2012)

Hong Kong was a British colony until 1997 when it was returned to China. Today, Hong Kong remains a common law jurisdiction, distinct from Mainland China, and enjoys a high degree of autonomy. Before 1997, Hong Kong followed the British doctrine of restrictive sovereign immunity, under which a foreign sovereign is not immune from claims arising out of commercial activities. China, however, has espoused the more traditional doctrine of absolute sovereign immunity, under which a foreign sovereign is always immune from suit, whether or not the claim arose from commercial activities.

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Why China’s 2010 Medical Malpractice Reform Fails to Reform Medical Malpractice

Jordan Kearney | 26 Emory Int'l L. Rev. 1039 (2012)

Violence against doctors and healthcare staff in the People’s Republic of China has turned doctors and nurses into masters of self-defense. Healthcare facilities in China have become “battlegrounds of discontent.” Scenes coming out of hospitals in the People’s Republic of China look more like warzones than healthcare institutions.

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Giving Teeth to European Patent Reform: Overcoming Recent Legal Challenges

Matthew Parker | 26 Emory Int'l L. Rev. 1079 (2012)

Europe must transition from a national, splintered patent enforcement regime to a transnational, uniform patent enforcement regime to protect the value of European patents in the global economy. Patent reform in Europe is ongoing and supported by most member states of the European Union (“EU”), but objections by the European Court of Justice (“ECJ[closesmardoublequote]), the European Parliament, Spain, and Italy have stymied progress. This Comment proposes modifications to patent reform in an effort to overcome these myriad objections and to enable the realization of meaningful European patent reform.

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Gold Medalist to Cheater?: Improving the World’s Fight Against Doping in the Wake of Fina v. Cielo

Geoffrey Rathgeber | 26 Emory Int'l L. Rev. 1111 (2012)

At the 2008 Olympic Games in Beijing, China, Brazilian swimmer César Cielo Filho (“Cielo”) lunged into the wall first in fifty-meter freestyle, finishing in 21.30 seconds, an Olympic-record time. Three years later, while competing in Brazil two months before the 2011 Fédération Internationale de Natation (“ FINA” ) World Championships, Cielo found both his reputation and swimming future in jeopardy. Under the World Anti-Doping Code (“ WADC” ), to which all swimmers who compete at the international level must adhere, Cielo faced up to a two-year period of ineligibility from the sport. Such a sanction would have prohibited him from competing in the 2012 Summer Olympic Games in London and potentially cost him millions of dollars in endorsement deals.

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Aggravated with Aggregators: Can International Copyright Law Help Save the News Room?

Alexander Weaver | 26 Emory Int'l L. Rev. 1161 (2012)

The creation of the World Wide Web was based on a concept of universality that would allow a link to connect to anywhere on the Internet. Although the Internet has transformed from a technical luxury into an indispensable tool in today’s society, this concept of universality remains.

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