Suchergebnisse

This Article uses an interdisciplinary approach to explain why the International Labor Organization (ILO) has been given surprisingly short shrift in recent debates over the role of IOs in addressing the many transborder collective action problems that globalization has fostered. I review the ILO's past and its present with two broad objectives in mind. First, I seek to correct a misperception among international lawyers and legal scholars that the ILO is a weak and ineffective institution. The organization's effectiveness in creating and monitoring international labor standards has fluctuated widely during its nearly ninety-year existence. Over the last decade, however, the ILO - led by the Director General and the ILO Office - has ushered in a period of innovation and reform, narrowing the organization's mandate to emphasize universal compliance with a core group of fundamental labor rights. These developments - many of which are unknown outside the organization - reveal that the ILO has learned from successful strategies of other IOs and from its own past mistakes. They also cast doubt on the widely held view that international bureaucracies seek to expand their mandates to increase their authority over member states. A second objective of the Article is to analyze the under-studied issue of how IOs change and to assess three social science theories - (1) rational design; (2) neofunctionalism; and (3) historical institutionalism - that seek to explain how change occurs. A historical study of the ILO provides two opportunities to evaluate these competing frameworks and to consider the under-examined role of IO officials in promoting change. First, the four major phases of the ILO's existence - its founding in 1919, the interwar years, the decades following World War II, and post-Cold War globalization - offer discrete domains within which to assess the theories' comparative explanatory power. The second opportunity for theoretical assessment relates to the influence of the ILO's past on recently adopted reforms. None of the theories would have expected ILO officials to revitalize the organization, more than seventy-five years after its birth, by narrowing and refocusing its authority rather than expanding it.

In the growing cacophony of voices heralding or contesting the many facets of globalization, international organizations ("Os") are playing an increasingly prominent role. Government officials, advocacy groups, and scholars are heatedly contesting the merits and demerits of using IOs to promote interstate cooperation and to resolve the many transborder collective action problems that globalization has fostered. These controversies raise important questions about how IOs are designed and how they respond to the uncertainties and changing circumstances that are endemic to international affairs. In the debates over globalization and institutional change, one IO-the International Labor Organization ("ILO")-has been given surprisingly short shrift. Founded in 1919 and headquartered in Geneva, Switzerland, the ILO is one of the world's oldest 1Os. It has survived a world war and a cold war, a major global depression and a slew of recessions, a quadrupling in the number of its member states, and the rise of global capitalism. The ILO has a unique tripartite governance structure. Representatives of governments, organized labor, and employers from each of the organization's 178 member states participate in the work of the ILO in a ratio of 2-1-1, respectively. Worker and employer delegates attend the annual ILO Conference, the organization's principal lawmaking body, and meetings of its executive arm, the Governing Body, in their independent capacities. They form separate caucuses and often vote with their respective groups rather than with their governments. With only minor modifications, this "corporatist" tripartite structure has survived intact as the ILO's membership has grown from a small club of Western European states to include members with radically different approaches to managing labor relations, including the United States, socialist nations, and a large contingent of countries from the developing world.

This Article draws upon the international relations theory of regimes to analyze the growing chorus of challenges to the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs), and to the expansion of intellectual property rights more generally. The few years since TRIPs entered into force have seen nothing less than an explosion of interest in intellectual property issues in international fora not previously concerned with the products of human creativity or innovation. Intellectual property is now at or near the top of the agenda in intergovernmental organizations such as the World Health Organization and the Food and Agriculture Organization, in international negotiating fora such as the Convention on Biological Diversity's Conference of the Parties and the Commission on Genetic Resources for Food and Agriculture, and in expert and political bodies such as the United Nations Commission on Human Rights and its Sub-Commission on the Protection and Promotion of Human Rights. In some of these venues, intellectual property lawmaking has led to the negotiation of new treaties; in others, challenges to TRIPs are framed through reinterpretation of existing agreements and the creation of nonbinding declarations, recommendations, and other forms of soft law. The theoretical and practical consequences of these new developments have yet to be fully explored. I argue in this Article that the expansion of intellectual property lawmaking into these diverse international fora is the result of a strategy of "regime shifting" by developing countries and NGOs that are dissatisfied with many of the provisions in TRIPs and are actively seeking ways to recalibrate, revise, or supplement them. State and non-state actors shift lawmaking initiatives from one international regime to another for many reasons. In the case of intellectual property rights, developing countries and their allies have shifted negotiations and hard and soft lawmaking initiatives to four international regimes - those governing biodiversity, plant genetic resources, public health and human rights - whose institutions, actors, and subject matter mandates are more closely aligned with these countries' interests. Within these four regimes, developing countries are questioning established legal prescriptions and generating new principles, norms, and rules of intellectual property protection for states and private parties to follow. Intellectual property regime shifting thus heralds the rise of a more complex international environment in which seemingly settled treaty bargains are contested and new dynamics of lawmaking and dispute settlement must be considered.

The last few years have been a particularly heady period for governments, private parties, and NGOs seeking to develop new rules to regulate intellectual property ("IP") protection standards. During that time, a slew of lawmaking initiatives, studies, and reports have been launched in a strikingly large number of international venues. Work on intellectual property rights is now underway in intergovernmental organizations such as the World Trade Organization ("WTO"), World Intellectual Property Organization ("WIPO"), and Food and Agriculture Organization ("FAO"); in negotiating fora such as the Convention on Biological Diversity ("CBD") and its Conference of the Parties and the Commission on Genetic Resources for Food and Agriculture; and in United Nations expert and political bodies such as the Commission on Human Rights and the High Commissioner for Human Rights. In some of these venues, IP lawmaking has involved the negotiation of new international agreements. In others, IP norms are being generated through the reinterpretation of existing treaties or the creation of nonbinding guidelines, resolutions, and other forms of soft law. This essay views these myriad developments through the lens of the international relations theory of regimes. It uses the insights of regime theory to make three basic points. First, it explains why IP lawmaking has broken out of the confined institutional spaces of established international IP fora, such as WIPO and the WTO, and has moved into a broad and growing array of other international venues in environmental law, human rights, and public health. Second, it shows how this recent expansion helps to enrich regime theory itself by illustrating how regimes evolve over time and how they interact with institutions and actors in other issue areas. And third, it describes a working typology of the different modes of interaction that are developing among the many international venues in which IP lawmaking is now occurring.

This Article explores issues at the frontier of international law and constitutional law. It considers five key structural and systemic challenges that the international legal system now faces: (1) decentralization and disaggregation; (2) normative and institutional hierarchies; (3) compliance and enforcement; (4) exit and escape; and (5) democracy and legitimacy. Each of these issues raises questions of governance, institutional design, and allocation of authority paralleling the questions that domestic legal systems have answered in constitutional terms. For each of these issues, I survey the international legal landscape and consider the salience of potential analogies to domestic constitutions, drawing upon and extending the writings of international legal scholars and international relations theorists. I also offer some preliminary thoughts about why some treaties and institutions, but not others, more readily lend themselves to analysis in constitutional terms. And I distinguish those legal and political issues that may generate useful insights for scholars studying the growing intersections of international and constitutional law from other areas that may be more resistant to constitutional analogies.

Human rights and intellectual property, two bodies of law that were once strangers, are becoming increasingly intimate bedfellows. Over the past three years, human rights bodies within the United Nations have devoted unprecedented attention to intellectual property issues, including patented medicines, digital copyrights, technology transfers, economic, social and cultural rights, plant variety protection, and economic development. Unlike the approaches adopted in established intellectual property lawmaking organizations such as the WTO and WIPO, the new human rights approach to intellectual property is often critical of existing standards of protection and it seeks to address legal and policy issues that intellectual property treaty makers and legislators often ignore. In this essay, I analyze two competing frameworks that governments, NGOs, and intergovernmental organizations are using to conceptualize the intersection of human rights and intellectual property. The first approach views the two areas of law as in fundamental conflict, with strong intellectual property protection standards - in particular those of the TRIPs Agreement - undermining a broad spectrum of human rights. The second approach sees both areas of law as concerned with the same basic question: defining the appropriate scope of private monopoly power to give authors and inventors a sufficient incentive to create and innovate, while ensuring that the consuming public adequate access to the fruits of their efforts. The essay traces the evolution of these two competing approaches and explores their consequences for future international lawmaking.

This article raises the intriguing claim that international law can be overlegalized. Overlegalization occurs where a treaty's substantive rules or its review procedures are too constraining of sovereignty, causing governments to engage in acts of non-compliance or even to denounce the treaty. The concept of legalization and its potential excesses, although unfamiliar to many legal scholars, has begun to be explored by international relations theorists analyzing the effects of legal rules in changing state behavior. This article bridges the gap between international legal scholarship and international relations theory by exploring a recent case study of overlegalization. It seeks to understand why, in the late 1990s, three Commonwealth Caribbean governments denounced human rights treaties and withdrew from the jurisdiction of international tribunals. I refer to these events as the Caribbean backlash against human rights regimes. My study of this backlash has two objectives. The first is to show how overlegalizing human rights can lead even liberal democracies to reconsider their commitment to international institutions that protect those rights. The second objective is to assess three competing international relations theories that seek to explain the conditions under which states comply with their treaty commitments. To provide a more persuasive analysis of these issues, the article includes empirical data analyzing changes in the filing and review of international human rights petitions against Caribbean governments during the 1990s.

This article analyzes the dispute settlement proceedings pending before the World Trade Organization (WTO) concerning the Fairness in Music License Act of 1998, a new provision of the US Copyright Act that exempts many bars, restaurants, and retail stores from paying license fees for performing broadcast music in their establishments. In May 1999, the European Community challenged the Act, and its predecessor "homestyle exemption," as a violation of the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPs) and the Berne Convention for the Protection of Literary and Artistic Works (Berne). The FMLA dispute is the first time in history that US copyright laws will be judged by an international tribunal. The case is an embarrassing one for the United States, which has recently pursued a policy of aggressively encouraging other nations to provide strong legal protections for copyrighted works. Although officials within the Clinton Administration warned legislators that the Fairness in Music Licensing Act might be incompatible with the Berne and TRIPs treaties, Congress enacted the statute over their objections. Thus, in the first year of the new century, Congress may be faced with an unprecedented choice: modify the Copyright Act to satisfy the demands of international trade jurists or face retaliatory trade sanctions by the EC. In addition to analyzing the legal arguments available to the US and the EC under the Berne and TRIPs treaties, this article also seeks to explain why Congress deliberately chose to ignore past US intellectual property policy. Using insights from law and economics and from a study of the history of laws and licensing practices governing secondary uses of broadcast music, the article demonstrates how an increasingly broad free use exemption developed for businesses playing radio and television music. It then draws on these economic and historical insights to develop legislative reform proposals that are both compatible with United States' treaty obligations and that encourage performance rights organizations and associations of copyright users to reach an efficient private agreement to resolve the WTO dispute.