Emory International Law Review

EILR Recent DevelopmentsVolume 30

Promise Despite Overreach in Marshall Islands v. United States

Katherine Maddox Davis | 30 Emory Int'l L. Rev. 2063 (2016)

When it comes to accountability for treaty obligations, the International Court of Justice has not proved as impactful as its founders hoped. Given that shortcoming, domestic courts’ role in determining treaty obligations is critical. This Essay contends that treaty parties may have hope in federal court for declaratory relief regarding American treaty obligations. The inspiration comes from Marshall Islands v. United States, currently before the Ninth Circuit. The Marshall Islands sued the United States for breach of the Nuclear Nonproliferation Treaty Article VI, requesting declaratory and injunctive relief. This Essay deconstructs the Marshall Islands' strategy, pronounces its impending demise, and reimagines how the strategy could succeed if limited to declaratory relief. When a treaty party sufficiently pleads injury-in-fact in a proper venue, the Essay posits that redress, political question, and non-self-executing treaty status may not bar a declaratory judgment.

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The First Amendment and the Claim That Muslim Emigrants Be Denied Entrance into the United States

Vincent J. Samar | 30 Emory Int'l L. Rev. 2092 (2016)

Professor Vincent J. Samar examines whether the Establishment Clause of the First Amendment prevents the United States government from denying people entry into the United States based on religion alone in light of recent terrorist attacks around the world. Specifically, Professor Samar evaluates the practical implications of the present claim that potential Muslim emigrants into the United States can be denied entry based on religion alone. The Essay considers the United States' obligations under international human rights law to protect both the freedom of immigration and the freedom of religion, as well as the United States' compelling interest to protect national security. Professor Samar concludes that such a policy cannot be justified under the First Amendment Establishment Clause, as well the United States' expressed international commitments to preserving international human rights.

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Economists as Arbitrators

J. Gregory Sidak | 30 Emory Int'l L. Rev. 2105 (2016)

In this Essay, J. Gregory Sidak examines the use of economists as arbitrators or tribunal-appointed neutral experts in international arbitration in effort to raise the standard of party-expert testimony and expedite the determination of quantum. Mr. Sidak argues that either approach would expedite arbitration by causing parties to submit more realistic estimates of quantum and to explain in a more systematic and helpful manner the robustness of those estimates and the assumptions underlying them. Gregory Sidak draw insights from his experience as a court-appointed neutral economic expert on damages for Judge Richard Posner in two patent litigations. Sidak concludes that both the selection of an arbitrator with economic expertise and the tribunal's appointment of a neutral economic expert would create greater benefits than costs for the parties to the arbitration.

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Did Israel Violate International Humanitarian Law During Operation Protective Edge?

Pat Andriola | 30 Emory Int'l L. Rev. 2001 (2015)

In this essay, Pat Andriola addresses the legality of Israel's Operation Protective Edge launched against Hamas in the Gaza territory in the summer of 2014. The essay analyzes whether the legal action taken by Israel comports with customary international humanitarian law, specifically, the principles of distinction and proportionality, and whether there is in fact international law governing Israel's actions and use of force. Pat Andriola concludes that Israel's actions were governed by international law, as evident by Israel's attempts to warn civilians of incoming attacks. The essay continues to conclude that Israel most likely did not comply with the proportionality requirement, as the threat of Israeli deaths as a result of the Hamas rocket attacks was relatively minor.

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Enhanced Interrogation, the Report on Rendition, Detention, and Interrogation, and the Return of Kriegsraison

Benjamin Farley | 30 Emory Int'l L. Rev. 2019 (2015)

The Senate Select Committee on Intelligence released the Report on Rendition, Detention, and Interrogation in December 2014 detailing the use of enhanced interrogation techniques by the United States after the September 11, 2001 attacks. Defenders of enhanced interrogation often justify the use of such techniques based on military necessity and efficacy. In this essay, Benjamin Farley argues that by relying on military necessity, defenders of enhanced interrogation techniques are actually relying on kriegsraison - a long-discredited military doctrine that holds that the laws of war may be overcome in the face of extreme danger or simply to achieve the object of the war. The essay examines the clear and continuing rejection of kriegsraison at international law and traces the development of arguments justifying enhanced interrogation. Benjamin Farley urges for the rejection of any arguments based upon the doctrine of kriegsraison and upon using torture as an effective means of warfare.

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Reaffirming the Role of Human Rights in a Time of “Global” Armed Conflict

Jonathan Horowitz | 30 Emory Int'l L. Rev. 2041 (2015)

Jonathan Horowitz reviews the notion that there can be a "global" non-international armed conflict ("global NIAC") under international law in which an enemy fighter could be targeted by the state that is the victim of an attack by non-state actors anywhere he or she travels in the world. The essay highlights several consequences of recognizing such a global NIAC, including incidental civilian harm and destruction of civilian property, to conclude that the very existence of a global NIAC violates international law, particularly as it pertains to the rights of the territorial state. As a result, states subjects to attack must rely upon international law concepts other than a global NIAC to justify their extraterritorial use of force. The essay details several alternative legal avenues that would be permissible under international law that states may use to defend themselves from violent non-state groups.

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