Emory International Law Review

Volume 28Issue 1
Recent Developments

The Position of International Law Within the Indonesian Legal System

Simon Butt | 28 Emory Int'l L. Rev. 1 (2014)

Indonesia’s role in international and regional affairs has increased markedly since the fall of Soeharto in 1998. It has, for example, signed many international treaties. However, Indonesian law is silent on the position of international law, whether treaty or custom, in Indonesia’s legal system. This has led to a significant unresolved legal debate about whether Indonesia follows monism or dualism. This Article argues that, while Indonesia appears to be dualist in practice, there is some evidence of monism, particularly in the decisions of Indonesia’s Constitutional and Supreme Courts. Regardless, the uncertainty has allowed the Indonesian government to, on the one hand, leave the international community to believe that ratified treaties have automatic application, but on the other hand, to refuse to grant any rights to citizens that those international treaties seek to provide, claiming that treaties have no domestic application until incorporated by an Indonesian legal instrument.

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A President, an International Tribunal and a Band of Farmers Walk Into a Constitutional Court—The Last Laugh: “Mike Campbell v. The Government of the Republic of Zimbabwe”

Drew F. Cohen | 28 Emory Int'l L. Rev. 29 (2014)

A President, an International Tribunal and a Band of Farmers Walk Into a Constitutional Court—The Last Laugh: “Mike Campbell v. The Government of the Republic of Zimbabwe”

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The Quiet Audience: U.S. Responsibility to Call for an International Investigation Into Crimes Against Muslims in Burma

Rachel Wagley | 28 Emory Int'l L. Rev. 43 (2014)

It is ultimately in the strategic interests of the U.S. to promote the formation of a reconciled Burmese state that respects all people, regardless of their heritage.

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Police Powers and the Constitution of India: The Inconspicuous Ascent of an Incongruous American Implant

Arvind Datar, Shivprasad Swaminathan | 28 Emory Int'l L. Rev. 63 (2014)

Res extra commercium is a doctrine introduced by Chief Justice Das of the Supreme Court of India in the 1957 case, State of Bombay v. R.M.D. Chamarbaugwala, which has the effect of constricting the scope of fundamental rights by rendering as constitutional outcasts certain purportedly “immoral” or “noxious ” activities. It does this by blocking these activities from falling within the purview of the protection of fundamental rights. First, it will be argued that though the court did not expressly spell it out, it was the doctrine of “police powers” (the specific conception of the doctrine advanced by Justice Harlan of the U.S. Supreme Court in Mugler v. Kansas), which lies behind Chief Justice Das¿s invocation of res extra commercium. Second, it will be argued that Chief Justice Das did not openly invoke the police power doctrine in R.M.D. Chamarbaugwala because larger benches of the Supreme Court had earlier squarely rejected the import of the doctrine from American constitutional law. Finally, the paper argues why the police power doctrine sought to be imported by Chief Justice Das under the verbal dressing of res extra commercium is incongruous with the scheme of the Indian Constitution.

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Rethinking and Theorizing Regional Integration in Southern Africa

Luwam G. Dirar | 28 Emory Int'l L. Rev. 123 (2014)

Regional integration studies is characterized by, and normally understood as, a combination of inquiries from various disciplines. Conventionally, integration requires the amalgamation of political and economic policies. Yet, integration projects transcend political and economic cooperation and might even require harmonization of laws and principles. Scholars from legal, economic, and political sciences have studied and engaged in intra-disciplinary conceptualization of integration. Some of the theories that developed in relation to integration schemes in the developed North reflect socio-economic, political and historical factors of the North, casting doubt on the applicability, value, and consistency of those theories to integration schemes in southern Africa. Hence, this article is an attempt to conceptualize integration through a multidisciplinary analysis in order to proffer a broader conception of integration that encompasses local and regional emancipation movements in Africa in general, and in southern African countries in particular.

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Lincoln’s Legacy for American International Law

Antonio F. Perez | 28 Emory Int'l L. Rev. 167 (2014)

Is the United States, as an international actor, different from all other international actors? If so, how is it different? What makes it different? How does American sovereignty fit into a larger conception of international law? These questions go back to the beginning of the Republic, and they remain pressing today. Many have debated this question in terms of the legacy of the Founding. Some find in the Founding the seeds of multilateralism and perhaps even cosmopolitanism; others, rejecting this interpretation, advance a nationalist and unilateralist account of the Founding. But the Founding is not the whole story.

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Class Action Mechanisms in Chinese and Taiwanese Contexts—A Mixture of Private and Public Law

Jing-Huey Shao | 28 Emory Int'l L. Rev. 237 (2014)

This Article provides an overview of the class action mechanisms of China and Taiwan, including an analysis of the legal and court systems and other institutions involved in the implementation. By examining representative cases and empirical evidence, this Article marks transitions between the introduction of a class action mechanism and its later transition.

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The Civil Codes of Libya and Syria: Hybridity, Durability, and Post–Revolution Viability in the Aftermath of the Arab Spring

Dan E. Stigall | 28 Emory Int'l L. Rev. 283 (2014)

The Arab Spring sent shockwaves through the political landscape of the Middle East and North Africa and upended long-standing authoritarian regimes throughout the region in rapid succession. Among the many countries touched by the Arab Spring, Libya and Syria have been among the most profoundly impacted, experiencing institutional deficits that complicate efforts to resolve ongoing conflicts and now threaten regional stability. The effects of such instability also pose a threat to the international community. In order to transition from conflict to peace and sustainable development in Libya and Syria, however, international actors will need to make concerted efforts at rebuilding the architecture of governance, a process which entails restoration of rule of law, dispute resolution, and core government functions. Such a process necessarily entails engagement with the civil law systems in force in these countries. This Article, therefore, explores the structure and substance of the Libyan Civil Code and the Syrian Civil Code, with special attention given to two of the most critical aspects of civil law vis-à-vis post-conflict reconstruction: The way each civil code addresses the formation of obligations and the regulation of property rights. This Article explicates the formal rules that: (1) regulate the legal affairs of citizens in those countries; (2) notes the applicability of those laws to post-revolution problems; (3) explores those elements and aspects of the Libyan and Syrian civil codes which have made them such durable legal institutions; (4) and assesses their ongoing, post-revolution viability.

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Religion and Constitutionalism: Lessons from American and Islamic Constitutionalism

Nimer Sultany | 28 Emory Int'l L. Rev. 345 (2014)

This Article examines the role of religious law in constitutionalism by focusing on Egypt and Tunisia as two main case studies: Egypt is an example of the so-called “Islamic constitutionalism” and Tunisia is an example of a more secular variety. Both cases are analyzed against the backdrop of U.S. constitutional theory and law. I begin by rejecting conceptualist approaches which focus on abstract concepts in order to assess the compatibility of religion, like Islam, with democracy. I show the futility of this kind of debate through a comparison to American debates between opensmartdoublequote]living constitutionalists” and “originalists.” I then elaborate a pragmatic account that assesses the consequences of different institutional arrangements.

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Reverse the Curse: Creating a Framework to Mitigate the Resource Curse and Promote Human Rights in Mineral Extraction Industries in Africa

Eli G. Burton | 28 Emory Int'l L. Rev. 425 (2014)

The continent of Africa is one of economic paradox: Abundant natural resources lie within many of the states, yet despite their mineral wealth, these same states exhibit low levels of development and a poor standard of living. Resources that seemingly should benefit African states have instead been the impetus for their stagnant development. Historically, the beneficiaries of these vast mineral deposits have not been the African populations but rather foreigners such as the colonial powers in the nineteenth and twentieth centuries, exploitative corporations during the post-WWII neocolonial era, and opportunistic military strongmen involved in Africa’s civil and crossborder wars. The revenue that these resource caches produce is more often than not funneled to external entities, such as an international corporation or a few elites within a state. This phenomenon is generally known as the Resource Curse.

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Men of the Spear and Men of God: Islamism’s Contributions to the New Somali State

Matthew Cavedon | 28 Emory Int'l L. Rev. 473 (2014)

In September 2012, Somalia’s new government held a presidential election for the first time¿Hassan Sheikh Mohamud, an Islamist, won. Twenty years after a coalition of clans overthrew military dictator Mohamed Siyaad Barre and the country fell into anarchy, a new state is beginning to take shape. Though the government has yet to pass very many laws, Somalia’s new Constitution establishes parliamentary democracy, declares Islam the official religion, considers human rights a guiding principle, and guarantees private freedom of religion while restricting the public propagation of religions other than Islam. The state is still far from secure, and the overnment has yet to extend its authority everywhere, but Somalia is taking its first steps toward stable government.

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From the Watch Tower to the Acropolis: The Search for a Consistent Religious Freedom Standard in an Inconsistent World

Casey Jo Cooper | 28 Emory Int'l L. Rev. 509 (2014)

In late 2011, Greek authorities convicted a Pentecostal Christian for proselytizing to another man. In Greece, proselytism is a crime punishable by hefty fines and imprisonment and is strictly prohibited by both the Constitution and statutes. Emmanuel Damavolitis, a Pentecostal Christian, now faces four months in prison and a fine of €840 for proselytism. His attorney, Vassilios Tsirbas, appealed his case to the European Court of Human Rights (“ECHR”), claiming the conviction violates Article 9 of the European Convention ofHuman Rights. This case illustrates how creating a framework for securing religious freedom is a paradox amidst the democratic revolution of the modern world.

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When a Home Is Not a House: The Destruction of Romani Personal Property as a Human Rights Violation

Karolina Grygierowska | 28 Emory Int'l L. Rev. 557 (2014)

This Comment provides a new perspective on Romani legal issues typically overlooked by scholars by not simply focusing on major human rights issues classically discussed in light of the mistreatment of the Roma. Instead, this Comment examines legal issues that are not classified as human rights violations but impact the Roma in ways that rise to the level of a human rights violation based on their unique background and culture. By focusing on the destruction of chattels and personal property, this Comment evaluates the effectiveness of legal claims for actions that may rise to the level of human rights violations in the unique cultural context of nomadic Romani life. Finally, this Comment concludes that there is a severe lack of adequate legal remedies available, and that current efforts have been insufficient to remedy the marginalization and mistreatment suffered by the Romani people.

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Can I Say That?: How an International Blasphemy Law Pits the Freedom of Religion Against the Freedom of Speech

Caleb Holzaepfel | 28 Emory Int'l L. Rev. 597 (2014)

This Comment aims to illustrate the dangers inherent in blasphemy laws, by examining both their past and present state. If blasphemy laws become customary international law, as recent resolutions passed in the United Nations indicate, an important human right is unnecessarily threatened. Though blasphemy laws protect the freedom of some individuals to practice religion as they see fit without insult or unjust attack, blasphemy laws also inherently limit other individuals’ freedom of speech. The conversation over enacting and enforcing blasphemy laws is multi-layered and complex, but the foremost concern about certain new blasphemy laws is that they give freedom of religion undue precedence over freedom of speech, to the detriment of society. This Comment will illustrate the faulty thought processes behind blasphemy laws and the danger of allowing domestic blasphemy laws to evolve into international customary law.

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Lowering the “Efficacy” Threshold for Section 3(d) of the Indian Patents (Amendment) Act 2005: A Case for a Broader Scope

Andrew Q. Leba | 28 Emory Int'l L. Rev. 649 (2014)

This Comment examines the history that led to India’s current patent system, the status of pharmaceutical patentability in India and the relevant case law, and the future of India’s patent system. Based on that analysis, this Comment recommends that India should reinterpret Section 3(d) of its Patents Act in a way that gives stronger protection to drug innovators. Part I discusses the history of the Indian patent system, and India’s entry into the global economy in adopting the Trade-Related Aspects of Intellectual Property Rights, and key provisions of India’s new patent system. Part II examines recent clashes and key legal decisions involving foreign pharmaceutical companies and Indian generic manufacturers since the 2005 amendments to India’s Patents Act. Part III recommends that India’s patent system give a broad interpretation to Section 3(d) of India’s Patents Act in light of the mechanisms already in place to weed out frivolous patents.

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