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.
The article critically assesses the Uniform Domain Name Dispute Resolution Policy (UDRP) as a potential model for solving the immense legal challenges presented by transborder activity. Inaugurated in late 1999 by the Internet Corporation for Assigned Names and Numbers (ICANN), the UDRP creates a fast, inexpensive online mechanism for trademark owners to recapture domain names held by persons who, in bad faith, register and use domain names that are confusingly similar to those marks. At present, the UDRP applies only to a narrow segment of disputes between trademark owners and domain name registrants. But the UDRP has been heralded by some as the model for a new non-national approach to lawmaking and dispute settlement applicable to a broader set of legal issues that transcend national borders. In this article, we describe the conditions that led to the UDRP's formation and consider whether the UDRP can and should be replicated elsewhere. The process by which the UDRP was created, and the way in which it is structured, departs significantly from preexisting approaches to international lawmaking and dispute settlement. The UDRP is the product not of national legislation nor an international treaty, but rather of a web of contractual obligations imposed by a private, non-profit corporation with a monopoly over a valuable resource. Through its agreements with the U.S. Department of Commerce, ICANN serves as the gatekeeper for anyone seeking to acquire the most commercially valuable internet addresses. Exclusive control of access to the root server enables ICANN to dictate the terms and conditions for domain name ownership. This technological control also facilitates enforcement of UDRP panel decisions compelling domain name registrars to cancel ownership of contested domain names or transfer them from registrants to trademark owners. The UDRP deviates from preexisting lawmaking and dispute settlement paradigms in other ways that make its advantages considerable (and which may make it attractive for replication). For example, the UDRP is a hybrid dispute settlement system. It contains an amalgam of elements from three distinct decision making paradigms - judicial, arbitral and ministerial - and it draws inspiration from international, supranational, and national legal systems. The UDRP thus reveals how dispute settlement structures can be tailored to the needs of new technologies and new types of legal conflicts. The UDRP is also non-national. Neither its substantive content nor its prescriptive force necessarily depends upon the laws, institutions, and enforcement mechanisms of any single nation-state or treaty regime. It thus suggests ways to bypass the often slow and cumbersome mechanisms of national and international lawmaking and to fulfil the demand for effective dispute settlement mechanisms that, like so much current social activity, transcend national borders. Even assuming the UDRP can be applied to other situations where the conditions of monopolistic technological control do not subsist, however, we do not believe that it should be uncritically extended to other contexts without first questioning how non-national systems ought to be structured. In particular, while we applaud the effort to construct a non-national model that draws upon but is not constrained by existing paradigms, the current iteration of that model fails to incorporate appropriate checking mechanisms to control the scope and pace of lawmaking and the limited powers granted to dispute settlement decisionmakers. Moreover, the tensions between national and non-national values may be more difficult to reconcile in other settings; cybersquatting, in contrast, was universally condemned, and thus competing national values were less frequently implicated. We seek to identify these and other variables that should guide the authors of new checking mechanisms for new non-national structures.
