Emory International Law Review

Volume 29Issue 1

I, Too, Sing America: Customary International Law for American State and Federal Courts’ Post-Kiobel Jurisprudence, Guided by Australian and Indian Experiences

Katherine M. Davis | 29 Emory Int'l L. Rev. 119 (2014)

Kiobel v. Royal Dutch Petroleum Co. re-ignited American discussions on customary international law (CIL). Outside the Alien Tort Statute, however, CIL authority in American courts remains unresolved and seemingly at odds with federalism. Debates are polarized between theories that CIL is binding domestic law and that CIL has no authority without enacting legislation. Seeking resolution, Katherine M. Davis assesses state and federal court decisions on CIL from fellow federal nations India and Australia. Indian and Australian jurisprudence offer three insights. First, as India and Australian courts harmoniously interpret CIL in various fashions, American solutions need not be as extreme as some suggest. Second, India’s and Australia’s limited embrace of CIL indicate that what many deem “American exceptionalism” from international law may not be so exceptional after all—rather, a necessary function of federalism. Finally, drawing from an Indian state court, Davis suggests importing the CIL-equivalent of a Charming Betsy canon.

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Establishing a Positive Right to Migrate as a Solution to Food Scarcity

Douglas Stephens | 29 Emory Int'l L. Rev. 179 (2014)

Food scarcity is a dire matter impacting parts of our world such from Paraguay to Somalia. In these nations, the issue is serious enough to force individuals to leave their homeland for another country. However, under the current regime of human rights law, these individuals are left without protection. While international conventions guarantee them the freedom of movement, they are not promised the right to enter other countries. Likewise, though refugee law covers sudden, violent, or extreme deprivations, it does not account for slow degradation of the environment, or social, political, or economic issues that lead to food scarcity. Under both approaches, vulnerable individuals are stranded without legal protection. Douglas Stephens proposes solving this problem by developing methods to create positive rights for individuals whose rights to life are violated by food scarcities that cannot be remedied in situ.

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The Proposed Transatlantic Trade and Investment Partnership (TTIP): ISDS Provisions, Reconciliation, and Future Trade Implications

Mark Weaver | 29 Emory Int'l L. Rev. 225 (2014)

On July 8, 2013, the United States and the European Union launched talks for the Transatlantic Trade and Investment Partnership, a proposed international investment agreement that would create the world¿s largest free trade area and cover almost half of the entire global economic output. Even with a recognized public backlash, U.S. and EU leaders have publicly stated their intention of including investor-state dispute settlement provisions in the finalized TTIP and future international investment agreements, including any future multilateral agreement on investment. Mark Weaver provides original analysis on specific provisions regarding each of the issues the U.S. Model text, as well as the EU Draft text and corresponding negotiating directive address, create. This Comment seeks to prescribe reconciliation between the U.S. and EU texts and finds that reconciliation is possible on all ISDS provisions of the proposed TTIP.

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