Emory International Law Review

Volume 27Issue 1

The Editorial Board | Emory Int'l L. Rev. i (2013)

The Editorial Board of the Emory International Law Review is pleased to present the first issue of Volume 27. With this issue, we continue our tradition of publishing short pieces, known as Recent Developments, top-notch student pieces, and full-length professional articles. The thirteen individual pieces in this issue span a wide cross-section of international law subjects, from the Alien Tort Statute to cross-border adoptions and from digital privacy to military necessity.

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Recent Developments

Central Aspects of the Debate on the Complexity of International Law

Marcelo Dias Varella | 27 Emory Int'l L. Rev. 1 (2013)

The way that actors create, implement, and control international law is far more complex today than it was thirty years ago. International law has become increasingly detailed and specific, as international relationships and transnational legal processes have become more complex. The distinction between national and international law is much less clear. States remain the primary actors, but there has been a multiplication and intensification of the role of sub-state and non-state actors. There is a continuous transformation of international law, by both public and private mechanisms, from the national to the international sphere and vice versa. The evolution of norms has also become increasingly dense. Any discussion in this arena must contend with new sources and new subjects of international law.

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Argentina’s Right to be Forgotten

Edward L. Carter | 27 Emory Int'l L. Rev. 23 (2013)

Actresses, models and athletes have brought some two hundred lawsuits, most filed by the lawyer Adolfo Martín Leguizamón Peña, against Google and Yahoo to demand removal of Internet search results and links to photographs. Many of the plaintiffs allege that Internet search results improperly associate their photographs—some of which are sexually suggestive and which were presumably taken and posted originally with permission—with pornography or prostitution.

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Towards a New Democratic Africa: the African Charter on Democracy, Elections and Governance

Stacy-Ann Elvy | 27 Emory Int'l L. Rev. 41 (2013)

The African Charter on Democracy, Elections and Governance (“ADC”) recently entered into force on February 15, 2012. The main goal of the ADC is the encouragement and promotion of democracy and human rights on the African continent. The ADC is the first binding regional instrument adopted by member states of the African Union (“AU”) that attempts to comprehensively address all of the elements necessary for the establishment of liberal democracies. The ADC also contains a number of expansive provisions regarding unconstitutional changes of government.

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Babies Without Borders: Human Rights, Human Dignity, and the Regulation of International Commercial Surrogacy

Yasmine Ergas | 27 Emory Int'l L. Rev. 117 (2013)

In recent decades, a robust international market in commercial reproductive surrogacy has emerged. But, as German citizens Jan Balaz and Susan Lohle discovered when they struggled to engineer the last-minute diplomatic compromise that saved their commissioned twins from becoming wards of the Indian state, conflicts among legal frameworks have placed the children born at risk of being “marooned stateless and parentless.”

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Contextualizing Military Necessity

Nobuo Hayashi | 27 Emory Int'l L. Rev. 189 (2013)

Modern theories correctly reject the Kriegsräson doctrine, according to which the laws of war do not override the necessities of war and it is rather the latter that override the former. One such theory holds that unqualified rules of international humanitarian law (“IHL”) exclude military necessity being invoked de novo as a ground for deviation therefrom, yet not as a ground for additional restraint thereon. This theory—let us call it “counter-Kriegsräson”—is unacceptable for two reasons.

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Procedural Due Process in the Expulsion of Aliens Under International, United States, and European Union Law: A Comparative Analysis

Won Kidane | 27 Emory Int'l L. Rev. 285 (2013)

Liberal democracies aspire to respect minimum standards of individual liberty and due process to all. They structurally limit their powers with respect to how they treat all persons—including noncitizens, also known as “aliens.” Nonetheless, the exact scope and nature of the limitations imposed by international and domestic legal regimes for the expulsion of noncitizens still remains uncertain and is in a constant state of evolution in multiple directions. Indeed, a mix of situational progression and regression characterizes these regimes. The proper balance between personal liberty, due process, and equal protection on the one hand—and security, economic and related governmental and other common societal interests on the other, has proven elusive.

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Ignoble Treatment: The Tax Increase on Noble Energy’s Interests in the Massive Israeli Gas Strikes

Joel Slawotsky | 27 Emory Int'l L. Rev. 347 (2013)

After decades of relatively sparse oil and gas finds, recent developments have transformed Israel from being energy dependent into a probable energy exporter with its own sovereign wealth fund. In 2009 and 2010, United States based Noble Energy (“NBL”) and its Israeli corporate partners, made two giant gas strikes. One field, “Tamar,” was the largest gas find in 2009 and the second, “Leviathan,” was among the largest strikes in a decade. NBL had undertaken the costly and risky explorations relying upon a long-existing regulatory structure which resulted in a modest royalty rate in addition to the ordinary corporate income tax rate. However, following the gas discoveries, the Israeli government amended the regulatory structure in 2011 with the enactment of a new windfall energy profits law which sharply increased the tax rate. The new tax law contains no grandfather clause and includes all prior discoveries such as NBL's prior gas strikes.

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Reconsidering the Purely Jurisdictional View of the Alien Tort Statute

Kedar S. Bhatia | 27 Emory Int'l L. Rev. 447 (2013)

The Alien Tort Statute was enacted by the United States Congress in 1789 and laid dormant for nearly two centuries. After being reanimated in 1980, the statute now allows United States federal courts to hear claims for violations of the law of nations stemming from a wide array of behavior. Such an extraordinary interpretation was far from inevitable, however, and remains on unsteady footing.

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A Critique of the U.S.–Russian Adoption Process and Three Recommendations for the U.S.–Russian Bilateral Adoption Agreement

Bethanie Barnes | 27 Emory Int'l L. Rev. 397 (2013)

This Comment analyzes and recommends changes to the Adoption Agreement that will regulate intercountry adoption between the United States and the Russian Federation until January 2014. This Adoption Agreement was reached out of concern for the safety of adopted children, due to the number of stories and allegations of abuse at the hands of American parents.

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Church-State Cooperation Does Not Violate a Guarantee of Religious Freedom: A Study of the 1978 Spanish Constitution and 1979 Concordat with the Catholic Church

Melissa Curvino | 27 Emory Int'l L. Rev. 509 (2013)

For much of Spanish history, to be a Spaniard and to be a Catholic were understood as equivalent. Spain had seven different constitutions in a span of 150 years and the question of religion was one of the main issues in each new constitution. From the early 1800s until the Constitution of 1978 Spain oscillated between two extremes: on one side, complete identification of the Church with the state; and on the other, state discouragement and restriction of the Church. Neither extreme provided for religious freedom. The Constitution of 1978 was different. It struck a workable balance in church-state relations by embracing the historical and social importance of the Catholic Church while at the same time protecting the rights of minority religions.

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Ensuring the Effective Prosecution of Sexually Violent Crimes in the Bosnian War Crimes Chamber: Applying Lessons from the ICTY

Courtney Ginn | 27 Emory Int'l L. Rev. 565 (2013)

Despite the extensive use of sexual violence as a weapon in war throughout history, the International Criminal Tribunal for the former Yugoslavia was the first international tribunal to develop criminal jurisprudence concerning sexual violence. Although the ICTY expanded criminal liability for sexually violent acts committed during the Yugoslav Wars to an unprecedented extent, the conviction rate for sexually violent crimes was much lower than the conviction rate for other crime.

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Targeted Killings in Yemen and Somalia: Can the United States Target Low-Level Terrorists?

John Odle | 27 Emory Int'l L. Rev. 603 (2013)

Since the tragic events of September 11, 2001, the use of unmanned aerial vehicles—more commonly known as drones—to target individual terrorists has become an important tool for U.S. counterterrorism efforts abroad. However, to use force abroad the United States must meet the requirements of international law, particularly the international law of self-defense. The United States has claimed that it is in an armed conflict with Al Qaeda and its associated forces, which would have to be conducted under the law of armed conflict.

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Redefining “Atheism” in America: What the United States Could Learn From Europe’s Protection of Atheists

Alan Payne | 27 Emory Int'l L. Rev. 661 (2013)

There continues to be a pervasive and persistent stigma against atheists in the United States. The current legal protection of atheists is largely defined by the use of the Establishment Clause to strike down laws that reinforce this stigma or that attempt to deprive atheists of their rights. However, the growing atheist population, a religious pushback against secularism, and a neo-Federalist approach to the religion clauses in the Supreme Court could lead to the rights of atheists being restricted.

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