Law Commons^™

Equality Offshore, Martin W. Sybblis

Faculty Articles

Global governance architecture, crafted by wealthy nations, has perpetuated the subordination of developing jurisdictions. The Article offers a novel and surprising analysis of governance tools used by wealthy countries and inter-governmental organizations to constrain offshore financial centers (OFCs) by focusing on the tools’ disparate impacts on tax havens whose populations comprise predominantly Black and Brown people. With tax haven issues garnering increasing attention, this Article provides a pathbreaking conceptual framework for examining the international tax, crime, and business discourse on OFCs. It also illuminates how the actions of powerful international actors, such as the Organization for Economic Cooperation and Development …

Foreword, Margaret F. Sport

Emory International Law Review

No abstract provided.

Viral Sovereignty, Vaccine Diplomacy, And Vaccine Nationalism: The Institutions Of Global Vaccine Access, Sam F. Halabi, Ana Santos Rutschman

Emory International Law Review

The COVID-19 pandemic has triggered a global vaccine race. Distributive questions about which countries will receive scarce doses and under which conditions pervade international law and diplomacy. This Article is the first to describe the phenomena that have driven the development of international vaccine-sharing mechanisms, identify the international organizational forces that explain the phenomena, and explain how international organizations may facilitate international cooperation before, during, and after global crises.

This Article explores the longstanding dissociation between global public health imperatives and nationalist responses to pandemics within the frameworks of “vaccine nationalism,” “viral sovereignty,” and “vaccine diplomacy.” The Article then considers …

Extrajudicial Killings In Bangladesh: Exploring The Phenomenon Of Human Rights Violations As A Means Of Maintaing Power, M. Ehteshamul Bari

Emory International Law Review

When the South Asian nation of Bangladesh emerged as an independent nation on December 16, 1971, the founding fathers sought to establish a liberal democracy that would uphold the rule of law and the fundamental human rights of individuals. To this end, they incorporated extensive guarantees, including safeguarding the enforcement of an impressive eighteen fundamental rights, in the Constitution of Bangladesh of 1972. However, this Article will demonstrate that after almost fifty years of independence, the promise of a liberal democracy has remained elusive in Bangladesh due to the frequent violation of human rights through extrajudicial killings as a convenient …

The New Slot Machine: An International Perspective On Why The United States Should Learn To Stop Loving The Loot Box, Ajay Harish

Emory International Law Review

Games of chance are woven into the fabric of human culture. Rapid shifts in technology have resulted in the creation of the loot box, a new video game monetization scheme formed from the dregs of slot machines and trading cards. While extremely lucrative, the existence of loot boxes allows game companies to expose children to wager-like behavior, potentially creating a new generation of problem gamblers. The United States is both financially and culturally tied to video games as an industry and has been slow in its regulation of loot boxes. Given the problematic nature of loot boxes, existing regulations in …

Bivens And Ward---Constitutional Remedies In The United States And Canada, Madeline Prince

Emory International Law Review

Despite the killing of an unarmed fifteen-year-old boy by a federal border patrol agent, the U.S. Supreme Court in Hernandez v. Mesa refused to allow a Bivens cause of action to proceed and left an egregious violation of constitutional rights unremedied. The U.S. Supreme Court’s rulings in Ziglar v. Abbasi and Hernandez v. Mesa further limited the Bivens cause of action in such a way that makes successfully suing federal officials for constitutional violations practically impossible. The Supreme Court frequently denies Bivens claims due to the purported availability of alternative remedies. However, the Court’s recent jurisprudence makes clear that these …

Non-Income Tax Legislation Across Latin America: An Effective Policy To Raise Revenues?, Nicolás José Muñiz Arias

Emory International Law Review

In the past decades, there has been a proliferation of non-income levies throughout Latin America designed to stimulate collections. Tax administrators favor them for being easier to enforce as compared to traditional taxes on net income, as well as harder to evade.

To make sense of the rather dysfunctional conglomeration of levies, this Article proposes a classification into three broad categories: (1) taxes on revenues; (2) alternative levies on income and assets, whether on a gross or net basis, along with taxes on net equity; and finally (3) transactional-type levies such as stamp taxes, export duties, remittance taxes, and registration …

Secularism, Religion, And The State In A Time Of Global Crisis: Theoretical Reflections On The Work Of Abdullahi An-Na'im, Rohit Chopra

Emory International Law Review

This Essay presents a primarily theoretical examination of critical aspects of Abdullahi An-Na’im’s body of work. Drawing on my earlier work, the essay describes the current historical moment as one of “crisis globalization,” a normative condition characterized by the rise of authoritarianism and erosion of democracy across the globe, a backlash against religious and other kinds of minorities, as well as by a general sense of existential uncertainty stemming from the impact of climate change, terrorism, and our vulnerability to pandemics like Covid-19. I argue that An-Na’im’s work speaks especially powerfully to several aspects of this new condition. An-Na’im’s theorization …

Natural Law And Universal Human Rights, David F. Forte

Emory International Law Review

Abdullahi An-Na‘im has set his life’s quest on attempting to find a way that Muslim society can be attuned to the moral commands of the Universal Declaration of Human Rights, a Western creation. At present, the Shari‘a and the Declaration are in obvious tension, if not conflict, in areas such as freedom of religion and the rights of women. An-Na‘im finds that the Shari‘a is a creation of man derived in history from an interpretation of Islamic sources. Muslims today can legitimately develop their own interpretation relying on the root sources of Islam, but only so long as those sources …

Caliphs, Jinns, And Sufi Shrines: The Protection Of Cultural Heritage And Cultural Rights Under Islamic Law, Eleni Polymenopoulou

Emory International Law Review

This Article examines the position of the Islamic legal tradition on arts and cultural heritage, including its pitfalls, and argues that a better understanding of Muslim state practice is needed to enhance the protection of cultural rights in the Muslim world. This can further facilitate collaboration between Muslim states and inter-governmental bodies working in the field of culture; implement better accountability mechanisms under international criminal law, as well as; to contribute to the fight against terrorism. In addition, the author submits that Islamic law is not necessarily an appropriate platform to enhance cultural rights and cultural heritage in the Muslim …

Autobiographical Reflections, Abdullahi An-Naim

Emory International Law Review

As a way of concluding this festschrift issue of the Emory International Law Review, I have been invited to contribute an autobiographical essay reflecting on my academic and professional career.

Three Countries, One Problem: How The United States, United Kingdom, And France Handle Sexual Assaults In Higher Education, Annia Rochester

Emory International Law Review

Thirty-five percent of women worldwide will face physical or sexual violence. Female students within the United States, United Kingdom, and France are especially vulnerable to sexual assault and harassment due to a lack of protection from their governments. Failing to address the issue of sexual assault in higher education risks disrupting the education of student victims who are disproportionately women. Despite France and the United Kingdom signing the Istanbul Convention and the United States’ implementation of Title IX, these three nations have not done enough to prevent sexual misconduct among university-age students. All three nations have varying campus cultures and …

Huawei Strikes Back: Challenging National Security Decisions Before Investment Arbitral Tribunals, Ming Du

Emory International Law Review

No abstract provided.

No-Fault Vaccine Injury Compensation Systems Adopted Pursuant To The Covid-19 Public Health Emergency Response, Sam Halabi, Katherine Ginsbach, Katie Gottschalk, John Monahan, Judith Murungi

Emory International Law Review

No-fault vaccine injury compensation systems have developed over the course of the twentieth century, mostly in the richest countries in the world. Acknowledging that severe reactions to vaccines are rare, but can result in serious and sometimes complex injury, these systems provide financial and social support for those suffering these rare side effects. During the COVID-19 pandemic, and the rapid development and deployment of vaccines using novel technologies, these systems have proliferated not only among wealthy countries, where in their modern form they originated and spread, but also low- and middle-income ones. Adopting varying approaches to funding, eligibility, administration, process, …

Stifling Innovation: How Global Data Protection Regulation Trends Inhibit The Growth Of Healthcare Research And Start-Ups, Ryan Preston

Emory International Law Review

No abstract provided.

Iraq's Constitutional Moments And The Institutionalization Of Ethno-Sectarianism, Jomana Qaddour

Emory International Law Review

What role did Iraq's ethno-sectarian cleavages play in the process of drafting its 2005 Constitution? And what role has that Constitution played in further entrenching those cleavages? The 2003 Iraqi invasion by U.S. and allied forces ultimately resulted in the drafting of two of the country's most important documents: the Transitional Administrative Law and the 2005 Constitution. These two documents—heavily influenced by the United States and Britain, as well as powerful Iraqi stakeholders (both local and exiled)—were approved despite their serious deficiencies, particularly in articles pertaining to power sharing, individual rights, and civil liberties. These deficiencies, some of which were …

The Making Of A Muslim Democratic Party: Ennahda's Rebranding And An-Na'im's Secular State Framework, Erica Scott

Emory International Law Review

At its Tenth National Party Conference in 2016, Tunisia’s Ennahda Party announced that it would be formally rejecting the label “political Islam” and rebranding itself as a party of “Muslim democrats.” As part of this new identity, Ennahda decided to specialize exclusively in political affairs, officially separating religious activism from the party after decades of pursuing both politics and preaching. This announcement fueled speculation about Ennahda’s motivations, the decision’s practical implications, and its consequences for the relationship between religion and politics in Tunisia, which was only a few years into its democratic transition at the time.

One thinker whose work …

Mega-Constellations: Disrupting The Space Legal Order, Steven E. Grotch

Emory International Law Review

No abstract provided.

Exposure To Family Violence In Hague Child Abduction Cases, Deborah Reece

Emory International Law Review

The Hague Convention on the Civil Aspects of International Child Abduction requires signatory countries to hold prompt hearings for the return of wrongfully removed children back to their habitual residence. There are five defenses to return provided in the Convention. For taking parents escaping domestic violence with their children, the most typical defense offered to defeat a return petition is “grave risk of harm.” Courts vacillate on whether exposure to family violence amounts to a grave risk to a child. Further, some courts require consideration of “ameliorative measures” in an effort to repatriate children to abusive households, instead of denying …

Parents Versus Parens Patriae: The Troubling Legality Of Germany's Homeschool Ban And A Textual Basis For Its Removal, Luke Julian

Emory International Law Review

The Romeikes, a family from Germany, sought to educate their children in accordance with their religious values. The family observed that no local schools educated children in alignment with their values. In response, the family sought an exemption from Germany’s homeschooling ban. In a string of court cases, Germany refused to accommodate the family’s request, finding that the parents’ right to educate their children in alignment with their values was outweighed by the state’s obligation to educate. With no recourse left in Germany, the parents petitioned the European Court of Human Rights to recognize their right to homeschool according to …

The Implementation Of The Rights To Self-Determination Of Aymara And Quechua Indigenous Peoples: An International Normative Response To The Spanish Conquest Of Tawantinsuyu, Yuri G. Mantilla

Emory International Law Review

Contrary to ethnocentric views of law, this Article proposes an inter-civilizational perspective of international law. This perspective provides an analytical tool to understand the importance of preserving and empowering diverse cultures and peoples. In a globalized world, there is an increasing recognition of the contributions of diverse cultures and nations, including indigenous, to the economic development and the cultural heritage of humankind. The Article focuses on the importance of the resolution of a historical and ongoing ethnic conflict between the people of Tawantinsuyu, especially the Quechua and Aymara, and the descendants of Spanish conquistadores who continue to pursue policies to …

Muslim Modernism, Islamic Law, And The Universality Of Human Rights, Mohammad Fadel

Emory International Law Review

I first encountered Professor An-Na’im’s work quite serendipitously as a graduate student at the University of Chicago. At that time, I had not yet begun my legal studies and was early in my graduate student days at the Department of Near Eastern Languages and Civilizations. While browsing the stacks of the Regenstein Library, my eyes fell upon Professor An-Na’im’s book, Toward an Islamic Reformation. Although the book was not particularly relevant to my coursework at the time, its title intrigued me and I checked it out and read it quickly alongside my other assignments. At that time, I thought …

Building A Bridge Between Wash In Hcfs And The Right To Water Through The Lens Of Maternal And Child Health, London Edgar

Emory International Law Review Recent Developments

Despite being recognized as a human right over a decade ago, the right to water has yet to achieve universal recognition. And although the proportion of births taking place in HCFs as opposed to home delivery has increased globally from 52 percent in 2000 to 76 percent in 2018, an estimated three million infants still die each year in the first month of life. This Essay will begin by discussing the right to water and the barriers to its implementation when framed solely as a human rights obligation. The first section will specifically highlight sources that emphasize the right to …

An Examination Of Graffiti Protection And The Social Obligation Theory Of Property, Chelsea Kim

Emory International Law Review

With graffiti art booming, artists all around the world want their creations protected. Current copyright laws in the United States as well as Europe are incentive-based; however, this is an inadequate justification for protection when many artists are motivated by social contribution to the community. This Comment discusses graffiti protections under intellectual property law from an international standpoint—comparing the United Kingdom, France, Greece, and Germany—then analyzes graffiti protections under a progressive property theoretical framework. This Comment argues that the progressive property approach would support the need to better protect graffiti art under copyright law and to contemplate the interests of …

Engaging With Abdullahi An-Na'im's Philosophy On Islam And Human Rights, Mashood A. Baderin

Emory International Law Review

Abdullahi Ahmed An-Na‘im is one of the leading scholars and contributors on the subject of Islam and human rights. In fact, he remains one of the most cited authorities in the subject area. His contributions on the subject span more than three decades during which he has engaged with almost every topical issue on the subject. He has been described as one of the non-Western jurists from “the South” “who ha[s] made substantial contributions to the theory and practice of human rights” generally.

There can be little doubt that Abdullahi An-Na‘im has been one of the most influential voices on …

Tech Accountability In Face Of Genocide: Gambia V. Facebook, Laurie Kim

Emory International Law Review

The exigent nature of genocide, inherent costs of litigation that may impede ongoing investigations, and general reluctance of tech companies toward international data disclosure underscore the need for states and intergovernmental organizations to enforce more expedient discovery procedures for cases involving crimes against humanity. The discovery case between the Gambia and Facebook illustrates how the current legal framework regulating international data disclosures is ill-equipped to nimbly address the exigence of genocide in Myanmar.

Existing bilateral agreements and multilateral treaties overseeing international data disclosure should be amended to compel third-party internet service providers to disclose information in the extreme and exigent …

Selected Works, Abdullahi An-Naim

Emory International Law Review

No abstract provided.

Una Solució, Si Us Plau: Self-Determination And The Catalan Crisis, Jared Skinner

Emory International Law Review

Nestled in the corner of Spain is the birthplace of a people and a political conflict as old as the history of the peninsula itself. Catalonia, long a bastion for independence movements around the world, is caught at the center of tensions between traditional regionalism and political centrality in Spain. As internal unrest continues to intensify, miring discussion and dialogue, the crisis creeps closer to a point of drastic political uncertainty. Exhausted with the enduring lethargy of domestic and European legal fora, the Catalans have often thought of turning to international law for a solution. This Comment draws upon decades …

Assessing The Strategic Situation Underlying International Antitrust Cooperation, Weimin Shen

Emory International Law Review

This Article disputes the widely held view that the strategic situations underlying antitrust cooperation among developed antitrust regimes and developing antitrust regimes are similar, particularly the conclusion that the current set of policy options to address private and hybrid public-private restraints of trade is feasible in all situations. This Article utilizes an empirical inquiry into trade flows that affect the general level of antitrust regulations in open economies (here, Japan and China). Based on this empirical foundation, the current set of policy options are explored, including the extraterritoriality of U.S. antitrust law, Section 301’s competition-related clause, the World Trade Organization …

Trademark Thrower: Using Banksy's Recent Eu Trademark Misadventures To Assess Why Copyright Is Not "For Losers", Shelly Kurland

Emory International Law Review

This Comment seeks to distinguish the protections and protection requirements of trademark and copyright in an international context, specifically using a recent case in which internationally known street artist Banksy lost his European Union trademark protections despite registration. This EU trademark proceeding will be utilized to analyze the requirements to maintain trademark protection in an international context and explain why those requirements are important to the integrity of intellectual property protections.

This Comment will first give an overview of trademark and copyright as intellectual property in general, then go into the specifics of the U.S. and EU trademark systems. This …