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Undergraduate Law Review THE GEORGE WASHINGTON UNDERGRADUATE LAW REVIEW PUBLISHED BY THE PRE-LAW STUDENT ASSOCIATION Max G. Lesser Chelsea Brewer Director Vice President Kathleen V. Gilliland Emma L. Spath Editor-in-Chief Editor-in-Chief VOLUME 4 NUMBER 1 MAY 2014 THE GEORGE WASHINGTON UNDERGRADUATE LAW REVIEW Foreword Michael A. Fazio Introduction Max G. Lesser ARTICLES Paradox or Permissible? The Emergence of 1 Katherine Wynne the Responsibility to Protect Doctrine in International Law Problems & Prospects: 19 Kathleen V. Gilliland Patenting Biological Materials Partisan Gerrymandering: Constitutionality, 41 Max G. Lesser Political Repercussions, and Reforms Burmese Refugees in Thailand: 65 Keila Franks Thailand’s Obligation under Customary International Law to Uphold the Principle of Non-Refoulement The Rejection of Precedent and Individual 93 Sarah Helden Rights in Shelby County v. Holder Burning Persepolis: A Critique of the 111 Gregory Arnold EU Sanctions Regime Against the Islamic Republic of Iran On the Misfortune of Mandatory Minimums 123 Arjang Asadi Adoption and Tribal Law: 145 Zoe Goldstein Can the Duality be Reconciled? European Competition Law: 157 Andrea L. Sestanovich The Cases of Gazprom and Microsoft Privacy in the 21st Century: 171 Aman Y. Thakker The Third Party Doctrine in the Digital Age The Post 9/11 Foreign Intelligence 189 Nicole Grajewski Surveillance Act: National Security Crisis & the Resurgence of the Imperial Presidency Copyright © 2014 by GW PRE-LAW STUDENT ASSOCIATION THE GEORGE WASHINGTON PRE-LAW STUDENT ASSOCIATION BOARD OF EXECUTIVES Michael A. Fazio Chelsea Brewer President Vice President Max G. Lesser Kathleen V. Gilliland Law Review Director Editor-in-Chief Emma L. Spath Andrea L. Sestanovich Editor-in-Chief Financial Director Corey Schroer Greta Chwalek Events Director Public Relations Director Adam Schilt Blog Director THE GEORGE WASHINGTON UNDERGRADUATE LAW REVIEW EDITORS BOARD OF ADVISORS Alyssa Asquith Erik Biles, JD Greta Chwalek James Bonneau, JD Matthew K. Cubin Jeffrey Brand, JD, PhD Michael A. Fazio Keith Diener, JD Angelina Grochowski Kathryn E. Duffy, JD Jerry Harrison Michael Gabriel, JD Susan Huang Alan Morrison, JD Saskia K. Romero George Petel, JD Alexa Tanzi Cary Silverman, JD Oren Vitenson Andrew M. Stewart, JD Zachary Wolfe, JD A Special Thanks to Our Supporters: DC’s Top-Rated LSAT Company Cannot recommend Strategy Prep enough. I started with an initial diagnostic score of 163. My goal was a 170 by the end of the 100-hour course. I scored a 172 on the LSAT. Strategy makes breaking down the LSAT an understandable science, synthesizing it to its basics and providing the student with the tools and techniques needed to conquer this learn- able test. Best of all, the company is small, the instructor is friendly, and there are always opportunities for extra instruction and assistance. The classes are small—mine was at most 15-20 students. If you are in the DC/M/V area, it would be illogical of you not to study with Strategy Prep. — Mickey DiBattista For more reviews, check out Google+ and Yelp. We offer LSAT classes, LSAT tutoring, and admissions consulting. Strategy LSAT Preparation 1875 I Street NW, 5th Floor (202) 680-4561 Washington, DC 20006 www.StrategyPrep.com Above Farragut West Metro 7Sage LSAT and Law School Prep 7sage.com The George Washington University Student Association Foreword The George Washington Pre-Law Student Association is a prominent student organization for all undergraduate students interested in pursuing a law degree and a career in the legal field. The organization aims to enhance the foundation of legal scholarship on campus, while providing members with the opportunity to network and develop legal writing skills. Additionally, the organization equips students with the tools most necessary for a future in law, including information regarding law school admissions. The George Washington Undergraduate Law Review is a student-managed and published legal journal that analyzes current legal issues across a variety of specialties, including but not limited to environmental, criminal, immigration, and international law. The Undergraduate Law Review offers students the opportunity to explore legal research, enrich their writing and critical thinking skills, and make a valuable contribution to legal discussion during their undergraduate studies. The writings published in the Undergraduate Law Review conform to the 19th Edition of The Bluebook legal citation system, while adhering to the academic integrity of The George Washington University. The Pre-Law Student Association is proud of the work of these student authors and editors and their efforts in producing this journal. Sincerely, Michael A. Fazio President Introduction Going back all the way to our first meetings in September, the 2014 ULR Team was united behind a simple, straightforward goal for this year’s journal: Make this the best Undergraduate Law Review that the Pre-Law Student Association had ever published. We knew this would require expanding the presence of our journal so that the application process for writers would be highly selective, as well as making the publication process even more rigorous. Through our hard work setting up information sessions and advertising on campus early this year, the law review saw unprecedented interest from George Washington University students, and we received over sixty applications for twenty writing positions. We had clearly built up impressive momentum for the coming year by the fall, but I knew that reaching our goal would require—above all else—dedication and perseverance from our chosen writers in the months ahead. The publication process for this year was incredibly demanding and challenging. Writers for the law review were required to submit legal proposals, outlines, first drafts, and second drafts to the ULR team—which included myself, two editors-in-chief, and nine editors. We provided extensive critiques of writers’ work at each stage in the process, and every draft was also sent to a legal professional for final edits, which included GW Law School professors, law students, and attorneys. I am incredibly proud of the eleven writers who made it through this yearlong process from start-to-finish, and I know many of them believe that their articles are the best piece of writing they have ever produced. So despite being an undergraduate journal, I can say with the confidence that the articles contained in this year’s law review all share compelling analysis, thorough research, and very strong writing on a diverse variety of legal topics. I want to specially thank the PLSA’s Vice President, Chelsea Brewer, and the ULR’s two editors-in-chief, Kathleen Gilliland and Emma Spath. We spent countless meetings and hours together planning, editing, and writing for the law review, and I know that it was the strength and commitment of our team that made this year such a success. I also want to thank PLSA President Michael Fazio for his role in organizing and formatting the final manuscript, which was no easy endeavor. The responsibilities of this year were a profound learning experience, and I deeply appreciate the unique talents and abilities each of you brought to the table. And as we send this year’s journal off for publication, I have no doubt that—together— we accomplished our goal of making this year’s law review the best one our organization has ever published. Sincerely, Max G. Lesser Law Review Director Paradox or Permissible? The Emergence of the Responsibility to Protect Doctrine in International Law Katherine Wynne Introduction In the face of mass atrocity and inaction by the United Nations (UN), the leaders of the international community ask themselves: to act, or not to act? The question is not one of willingness; rather, it is a question of whether or not an individual state has the right to act.1 When UN inaction leaves citizens vulnerable to domestic atrocities, the onus of protection may potentially pass to individual states. Debate has arisen as to whether the passing of this onus of protection from UN-led action to individual state- led action is legally permissible. From the vacuum of UN inaction arose the Responsibility to Protect Doctrine (R2P). As it currently stands, the Responsibility to Protect is two-fold. First, it asserts that each state has a responsibility to protect its populations from atrocities such as genocide, war crimes, ethnic cleansing, and crimes against humanity. Second, the international community has a responsibility to protect populations from these kinds of atrocities.2 The purpose of this article is to determine the current status of R2P in international law and the international legal community, its legal permissibility within the United Nations framework, and the legal permissibility for individual states to recourse to force using R2P as legal justification outside of a UN Security Council Resolution. This article will find that the R2P as justification for force is legal within the context of the UN framework, the UN Charter of Rights and Freedoms, and current customary international law. This review will not find, however, that the same applies to individual states justifying recourse to force through R2P outside of the UN-framework. This review will conclude by recommending that the United Nations deter member states from individual intervention and recourse to force outside the bounds of a UN Security Council Resolution. If R2P were to be continually or increasingly used as justification for state intervention, the overall
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