Emory International Law Review

Volume 27Issue 2
Recent Developments

Landlubbers as Pirates: the Lack of “High Seas” Requirement for the Incitement and Intentional Facilitation of Piracy

George White | 27 Emory Int'l L. Rev. 705 (2013)

This commentary seeks to explain and evaluate the reasoning behind the recent finding, in United States v. Ali Mohamed Ali, that acts amounting to the intentional facilitation or incitement of piracy can constitute piracy in international law, and are subject to universal jurisdiction, even when those acts occurred within the territorial jurisdiction of a State. It argues that the decision has a sound basis in the orthodox rules of treaty interpretation. Although some have argued that universal jurisdiction can inhere over acts of piracy only where those acts of piracy occur beyond territorial jurisdiction, there is a strong legal and principled basis for the contrary conclusion. The decision invites a wider discussion of the limits of “intentional facilitation,” brief consideration of which suggests that the lack of a high seas requirement is likely to be expedient and unproblematic.

Read More »

The Federal Circuit Stumbles: U.S. Customs Gets “Green Light” for Indefinite Indecision on Importer Protests

Damon V. Pike | 27 Emory Int'l L. Rev. 719 (2013)

In 2012, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) issued two precedent-setting decisions that essentially removed the obligation of U.S. Customs and Border Protection (CBP or Customs) to make timely decisions on Protests filed by importers challenging the assessment of duty on imported merchandise.

Read More »

Applying Double Effect in Armed Conflicts: A Crisis of Legitimacy

Bradley Gershel | 27 Emory Int'l L. Rev. 741 (2013)

Assessing morality in armed conflicts raises a host of issues, not least of which is accounting for the loss of innocent life. For one, normative ethics presumes an absolute deontological proscription against harming the innocent. Yet, both just-war theory and post-war lex scripta affirm the doctrine of military necessity, which permits the loss of innocent life that is “incidentally unavoidable by the armed conflicts of the war.” This qualification is informed by the doctrine of double effect (“DDE”), a product of Catholic theology that serves to legitimize an attack causing “incidental” or “unintended” civilian causalities, provided certain conditions are met.

Read More »
Symposium: Moving Forward: The Future of the ICC in Light of Recent Developments

Transitional Justice for Tojo's Japan: The United States Role in the Establishment of the International Military Tribunal for the Far East and other Transitional Justice Mechanisms for Japan after World War II

Zachary D. Kaufman | 27 Emory Int'l L. Rev. 755 (2013)

Although the creation of the first international war crimes tribunal—the International Military Tribunal (IMT), also known as the Nuremberg Tribunal—has been the focus of significant scholarly attention, much less academic analysis has concentrated on the establishment of the second such body—the International Military Tribunal for the Far East (IMTFE), also known as the Tokyo Tribunal.

Read More »

Complementarity And Post-Coloniality

Nirej Sekhon | 27 Emory Int'l L. Rev. 799 (2013)

The International Criminal Court’s jurisdiction is complementary to that of national criminal jurisdictions. While most agree that complementarity is a cornerstone principle, debate continues as to what precisely it should mean for the ICC’s relationship to national criminal justice actors. “Positive complementarity,” a view many commentators hold, suggests that the ICC should use its power to educate, persuade, and prod states parties to undertake international criminal law investigations. For positive complementarity's more optimistic proponents, the future holds promise for a coordinated system of global justice in which the ICC plays a secondary role to national courts in vindicating international criminal law violations.

Read More »

Norms Governing the Interstate Use of Force: Explaining the Status Quo Bias of International Law

Richard Hanania | 27 Emory Int'l L. Rev. 829 (2013)

It is generally held that states interact with one another in a state of anarchy, at least when it comes to national security. After defining international law, I show that this is not completely accurate. Reflecting a status quo bias, classic invasions and territorial aggrandizement through force are illegal. Since 1945, states that have undertaken classic invasions have generally been sanctioned, and no state has taken territory from another by force since 1976.

Read More »

Inheriting International Rivers: State Succession to Territorial Obligations, South Sudan, and the 1959 Nile Waters Agreement

Mohamed S. Helal | 27 Emory Int'l L. Rev. 907 (2013)

South Sudan’s independence has increased the number of Nile riparian states to eleven. Unfortunately, the Nile remains without an all-inclusive legal regime to regulate its use and to ensure that this indispensable natural resource is conserved for future generations. What, therefore, are the legal obligations of the newborn Republic of South Sudan regarding the Nile River? Specifically, this Article asks whether the Egyptian-Sudanese Nile Waters Agreement of 1959 has devolved onto South Sudan.

Read More »

“I’m not Half the Man I Used to Be”: Exposure to Risk without Bodily Harm in Anglo-American and Israeli Law

Benjamin Shmueli | 27 Emory Int'l L. Rev. 987 (2013)

This Article addresses the fundamental and age-old question of defining harm in tort law. It follows the case of the trapped Chilean miners, among others. It challenges, in a comparative view, the common notion that no compensation will be awarded for tortious conduct that produces no actual loss or damages because pure risks that have not yet materialized are not considered a harm.

Read More »

The Dark Heart of Eastern Europe: Applying the British Model to Football-Related Violence and Racism

Matthew R. Watson | 27 Emory Int'l L. Rev. 1055 (2013)

In the summer of 2012, Poland and Ukraine co-hosted the 2012 UEFA European Football Championship. A week before kickoff, BBC’s investigative journalism program, Panorama, aired a documentary highlighting pervasive violence, racism and anti-Semitism in the football stadiums in both these nations. Violent and racist hooliganism is not a new phenomenon in Europe, but the images and interviews were shocking as hundreds of thousands fans from all over Europe prepared to travel to Eastern Europe for Euro 2012.

Read More »

Freedom of Expression in Russia as it Relates to Criticism of the Government

Tatyana Beschastna | 27 Emory Int'l L. Rev. 1105 (2013)

Freedom of expression in Russia appears to be slowly eroding, Russian Government promising to protect human rights, including the right to freedom of expression.

Read More »

Nothing Certain About Death and Taxes (and Inheritance): European Union Regulation of Cross-Border Successions

Jennifer Bost | 27 Emory Int'l L. Rev. 1145 (2013)

On July 4, 2012, after almost fifteen years of preparatory work, the European Parliament and the Council of the European Union (Council) passed a regulation intended to simplify international inheritance cases. The Regulation addresses issues regarding appropriate jurisdiction, applicable law, recognition and enforcement of decisions, and acceptance and enforcement of authentic instruments for international inheritance (Cross-Border Succession). It also creates a European Certificate of Succession. However, the Regulation expressly does not apply to any tax issues related to inheritance.

Read More »

Jurisdictional Battles in Both European Union Cross-Border Injunctions and United States Anti-Suit Injunctions

Tyler J. Dutton | 27 Emory Int'l L. Rev. 1175 (2013)

The Apple and Samsung litigation has resulted in more than twenty-two patent cases in six EU member states: twelve in Germany, two in the Netherlands, two in France, two in Italy, three in Spain, and one in the United Kingdom. Although the disputes involve the same technologies, Apple and Samsung must litigate the issue in each country because patent rights can only be enforced within the country that granted the patent. Patent battles, such as those between Apple and Samsung, require a patent owner “to pursue duplicative litigation on a ‘nation-by-nation’ basis, incurring significant costs and draining valuable judicial resources.”

Read More »

Chinese Currency Manipulation: Are There Any Solutions?

Laurence Howard | 27 Emory Int'l L. Rev. 1215 (2013)

Politicians often bellow about currency manipulation in an attempt to prove their toughness on foreign policy. All too often these politicians seem under- informed about the subject. In recent years, a substantial amount of political rhetoric in the United States has been aimed at addressing the “problem” of Chinese currency manipulation. Upon investigation, all of the proposed solutions prove inadequate, whether they call for greater cooperation with multi-national organizations, unilateral actions, or simple diplomacy.

Read More »

A Gap Between Ideals and Reality: The Right to Health and the Inaccessibility of Healthcare for haitian Migrant Workers in the Dominican Republic

Stephanie Leventhal | 27 Emory Int'l L. Rev. 1249 (2013)

This Comment examines the barriers that undocumented Haitian migrants face when accessing healthcare, despite their entitlement to health under the country’s domestic laws. It then provides steps the Dominican Republic can take to begin moving toward its promise of universal healthcare.

Read More »

Being Able to Prosecute Saif al-Islam Gaddafi: Applying Article 17(3) of the Rome Statute to Libya

M. Christopher Pitts | 27 Emory Int'l L. Rev. 1291 (2013)

The Arab Spring was a series of revolutions and demonstrations occurring in several nations throughout the Middle East and North Africa. One such revolution was the Libyan Civil War, which ended the forty-year reign of Colonel Muammar Gaddafi. While the revolution certainly affected the lives of Libyans, it also left its mark on international criminal law. On February 26, 2011, the United Nations Security Council passed Resolution 1970, which referred the situation in Libya to the International Criminal Court’s Office of the Prosecutor (OTP) for an investigation into any international crimes committed by Muammar Gaddafi and his regime since February 15, 2011. As a result, the Pre-Trial Chamber (Chamber) of the International Criminal Court (ICC) issued warrants for the arrest of Muammar Gaddafi, Saif al-Islam Gaddafi (Gaddafi), and Abdullah al-Senussi, alleging their responsibility for committing crimes against humanity during the conflict. The charges against Muammar Gaddafi were dropped due to his death, but the case against Saif Gaddafi and al-Senussi has continued and become an important issue for the new Libyan government, which has challenged the admissibility of the Gaddafi case before the ICC. The Chamber denied Libya’s admissibility challenge on May 31, 2013.

Read More »