Emory International Law Review

Volume 33Issue 4
David J. Bederman Lecture

Immigrants, Refugees and Women: International Obligations and the United States

Judge Rosemary Barkett | 33 Emory Int'l L. Rev. 493 (2019)

Issue 4 continues the tradition of publishing the David J. Bederman Lecture presented by the Emory University School of Law Center for International and Comparative Law. On February 19, 2018, the Lecture was given by Judge Rosemary Barkett. In October 2013, Judge Barkett was appointed, and now serves, as a member of the Iran-United States Claims Tribunal. In 2016, Judge Barkett was elected as Honorary President of the American Society of International Law, and in 2015, the President of the United States appointed Judge Barkett to the Panel of Conciliators for the International Centre for the Settlement of Investment Disputes.

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Articles

A Tale of Two Theories: Government by Judiciary Theory versus Guardianship of the Jurist Theory

Shams Al Din Al Hajjaji | 33 Emory Int'l L. Rev. 503 (2019)

This research argues that Muslim scholars developed two theories of government over time. Even tough Islamic scholars—Shia and Sunni—agree on mandating the highest level of legal knowledge in any member of the Islamic government, they disagree on the legal nature of these members, whether they are judges, or jurists. Shia Islamic scholars adopted the theory of the guardianship of the jurist (Wilayat al-Faqih in Arabic, or Vilayat e-Faqih in Farsi). Unlike Sunni scholars, the Shia has developed a practical approach to apply their theory of government in practice. A prominent example of this theory is the Iranian practice of the Guardianship of the Jurist Theory. Sunni Islamic scholars adopt the theory of government by judiciary (Wilayat Al-Qadi). The assumption of this theory is that member of the government are judges. This is based on the assumption that Prophet Mohamed was a judge with enumerated executive authorities, namely the collection of Sadaqat (state financial revenue), military power, and foreign affairs’ representation. This theory has never been in practice since the assassination of the first four successors of the Prophet.

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International Directives Relating to Sentencing

Johan D. van der Vyver | 33 Emory Int'l L. Rev. 535 (2019)

Punishment in international law must fit the crime, the personal dispensation of the criminal, and the interests of the international community. This basic norm of criminal justice is reflected in Article 78(1) of the Statute of the International Criminal Court (ICC Statute) which provides that “in determining the sentence, the Court shall, in accordance with the Rules of Procedure and Evidence, take into account such factors as the gravity of the crime and the personal circumstances of the convicted person.” Leaving it up to drafters of the Rules of Procedure and Evidence to afford substance to this basic principle became necessary due to the time constraints under which the Conference of Diplomatic Plenipotentiaries for an International Criminal Court, which was convened in Rome on June 15 through July 17, 1998, had to complete its primary mission, and the many controversies that prevailed among delegations that tended to prefer their own legal traditions, including constitutional standards of their respective countries.

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Comments

Forum Non Conveniens and the “Flat” Globe

Andrew Filipour | 33 Emory Int'l L. Rev. 587 (2019)

The doctrine of forum non conveniens was developed as a pragmatic response to an evolving judicial economy. This sense of pragmatism has continued to define application of the doctrine in the United States. Yet, in the international context, the Supreme Court last outlined the contours of forum non conveniens analysis in 1981 but, in the decades since, technological advancement has significantly altered the litigation playing field. For example, discovery is less burdensome now that documents are digitally transferable. And, even if relevant evidence isn’t digitizable, shipping costs have decreased significantly. Echoing these facts, critics argue forum non conveniens has lost the pragmatism that once defined the doctrine.

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If It Ain’t Broke: The Case Against “Rolling Back” Vehicle Emissions Regulations in the United States

Alexandria E. Pierce | 33 Emory Int'l L. Rev. 619 (2019)

While this Comment argues that the United States has a far stronger approach to regulating emissions from light-duty diesel vehicles than Germany, the U.S. approach is not perfect. Because emissions test parameters are public knowledge, automakers can design their emissions control devices “to the test.” For example, the VW “eco-diesel” family of vehicles had a software device that controlled emissions to the legal limits for the first thirty minutes that the vehicle ran but then gradually stopped working as the engine continued to run. This is likely because the federal emissions testing procedure used in the United States is approximately twenty minutes long, thus providing an opportunity for VW to evade notice of its practices for seven years.

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Fictions of the Final Frontier: Why the United States SPACE Act of 2015 Is Illegal

Kurt Taylor | 33 Emory Int'l L. Rev. 653 (2019)

This Comment argues that a broad interpretation of the Outer Space Treaty is proper, and that the SPACE Act of 2015 violates the Treaty’s bar on appropriation. Taking into account methods of treaty interpretation and examining the historical context at the time the Treaty was drafted supports a broad interpretation. This Comment proposes that there is indeed much to be desired by allowing and supporting celestial development, but that a change in the international regulatory regime is necessary to allow the SPACE Act of 2015 to operate without violating the Outer Space Treaty.

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