The international intellectual property system provides an important illustration of how regime complexity shapes domestic and international strategies of states and non-state actors. This article describes and graphically illustrates the multifaceted nature of the international intellectual property system. It then analyzes the consequences of regime complexity for international and domestic politics, emphasizing the strategy of regime shifting and its consequences for chessboard politics and the domestic implementation of international rules.
This article provides the first comprehensive analysis of the intellectual property case law of the European Court of Human Rights ("ECHR"). Within the last three years, the ECHR has issued a trio of intellectual property rulings interpreting the right of property protected by the European Convention on Human Rights. These decisions, which view intellectual property through the lens of fundamental rights, have important consequences for the region's innovation and creativity policies. The cases are also emblematic of a growing number of controversies in domestic and international law over the intersection of human rights, property rights, and intellectual property. The article analyzes this trend and uses it to develop three distinct paradigms to identify the proper place of intellectual property issues in the European human rights system. It concludes that the ECHR should find a violation of the right of property in intellectual property disputes only in cases of arbitrary government conduct.
The European Court of Human Rights (ECHR) is the crown jewel of the world's most advanced international system for protecting civil and political liberties. In recent years, however, the ECHR has become a victim of its own success. The Court now faces a docket crisis of massive proportions, the consequence of the growing number of states subject to its jurisdiction, its favourable public reputation, its expansive interpretations of individual liberties, a distrust of domestic judiciaries in some countries, and entrenched human rights problems in others. In response to this growing backlog of individual complaints, the Council of Europe has, over the last five years, considered numerous proposals to restructure the European human rights regime and redesign the European Convention on Human Rights (ECHR). This article argues that these proposals should be understood not as ministerial changes in supranational judicial procedure, nor as resolving a debate over whether the ECHR should strive for individual or constitutional justice, but rather as raising more fundamental questions concerning the Court's future identity. In particular, the article argues for recognition of ' embeddedness ' in national legal systems as a deep structural principle of the ECHR, a principle that functions as a necessary counterpoint to the subsidiary doctrine that has animated the Convention since its founding. Embeddedness does not substitute ECHR rulings for the decisions of national parliaments or domestic courts. Rather, it requires the Council of Europe and the Court to bolster the mechanisms for governments to remedy human rights violations at home, obviating the need for individuals to seek supranational relief and restoring countries to a position in which the ECHR's deference to national decision-makers is appropriate.
This article documents the rise of nonconsensual international lawmaking and analyzes its consequences for the treaty design, treaty participation, and treaty adherence decisions of nation states. Grounding treaties upon the formal consent of states has numerous advantages for a decentralized and largely anarchic international legal system that suffers from a pervasive "compliance deficit." But consent also has real costs, including the inability to ensure that all nations affected by transborder problems join treaties that seek to resolve those problems. This "participation deficit" helps explain why some international rules bind countries without their acceptance or approval. Such rules have wide applicability. But they can also increase sovereignty costs, exacerbating the compliance deficit. Nonconsensual international lawmaking thus appears to create an insoluble tradeoff between increasing participation and decreasing compliance. This article explains that such a tradeoff is not inevitable. Drawing on recent examples from multilateral efforts to prevent transnational terrorism, preserve the global environment, and protect human rights, the article demonstrates that the game-theoretic structure of certain cooperation problems, together with their institutional and political context, create self-enforcing equilibria in which compliance is a dominant strategy. In these situations, nonconsensual lawmaking reduces both the participation and the compliance deficits. In other issue areas, by contrast, problem structure and context do not affect the tradeoff between the two deficits, and the incentive to defect remains unaltered. Analyzing the differences among these issue areas helps to identify the conditions under which nonconsensual lawmaking increases the welfare of all states.
In 'Technological Change and the Design of Plant Variety Protection Regimes', Mark Janis and Stephen Smith make two novel and provocative claims. They first argue that the legal regime for protecting new plant varieties has become hopelessly outdated in light of recent changes in technology. They next assert that the fate of the plant variety protection (PVP) system illustrates a broader and more disturbing phenomenon in intellectual property law: the potential for sui generis, industry-specific intellectual property regimes to become increasingly ineffective over time. In this brief essay, I offer three points to amplify the authors' contributions and highlight the legal and political consequences of the arguments they advance. I first discuss plant breeders' rights as a distinct form of intellectual property protection. Next, I review the challenges to implementing the authors' proposal to replace existing PVP rules with unfair competition principles. Third and finally, I consider the extent to which the obsolescence of plant breeders' rights represents a phenomenon that exists in intellectual property systems more generally.
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.
A recent article in the California Law Review by Professors Eric Posner and John Yoo, Judicial Independence in International Tribunals, argues that the only effective international tribunals are dependent tribunals, by which the authors mean ad hoc tribunals staffed by judges closely controlled by governments through the power of reappointment or threats of retaliation. Independent tribunals, by contrast, meaning tribunals staffed by judges appointed on similar terms as those in domestic courts, pose a danger to international cooperation. According to Posner and Yoo, independent tribunals are suspect because they are more likely to allow moral ideals, ideological imperatives or the interests of other states to influence their judgments. In this response, we identify the many shortcomings in the theory, methodology, and empirics in Judicial Independence in International Tribunals. We do so to challenge the authors' core conjecture: that formally dependent international tribunals are correlated with effective judicial outcomes. We then offer our own counter-theory; a theory of constrained independence in which states establish independent international tribunals to enhance the credibility of their commitments and then use more fine grained structural, political, and discursive mechanisms to limit the potential for judicial excesses.
The Andean Community - a forty-year-old regional integration pact of small developing countries in South America - is widely viewed as a failure. In this Article, we show that the Andean Community has in fact achieved remarkable success within one part of its legal system. The Andean Tribunal of Justice (ATJ) is the world's third most active international court, with over 1400 rulings issued to date. Over 90% of those rulings concern intellectual property (IP). The ATJ has helped to establish IP as a rule of law island in the Andean Community where national judges, administrative officials, and private parties actively participate in regional litigation and conform their behavior to Andean IP rules. In the vast seas surrounding this island, by contrast, Andean rules remain riddled with exceptions, under-enforced, and often circumvented by domestic actors. We explain how the ATJ helped to construct the IP rule of law island and why litigation has not spilled over to other issue areas regulated by the Andean Community. Our analysis makes four broad contributions to international law and international relations scholarship. First, we adopt and apply a broad definition of an effective rule of law, using qualitative and quantitative analysis to explain how the Andean legal system contributes to changing national decision-making in favor of compliance with Andean rules. Our definition and our explanation of the ATJ's contributions to constructing an effective rule of law provide a model that can be replicated elsewhere. Second, we explain how the Andean legal system has helped domestic IP administrative agencies in the region resist pressures for stronger IP protection from national executives, the United States, and American corporations. We emphasize the importance of these agencies rather than domestic judges as key constituencies that have facilitated the emergence of an effective rule of law for IP. As a result of the agencies' actions, Andean IP rules remain more closely tailored to the economic and social needs of developing counties than do the IP rules of the Community's regional neighbors. Third, the reality that the ATJ is effective, but only within a single issue area, makes the Andean experience of broader theoretical interest. We offer an explanation for why Andean legal integration has not extended beyond IP. But our answer suggests avenues for additional research. We note that Andean IP rules are more specific than other areas of Andean law and that most administrative agencies in the region lack the autonomy needed to serve as compliance partners for ATJ rulings. We also find that, outside of IP, the ATJ is unwilling to issue the sort of purposive interpretations that encourages private parties to invoke Andean rules in litigation. The result is both a lack of demand for and supply of ATJ rulings. Fourth, our study of the Andean legal system provides new evidence to assess three competing theories of effective international adjudication - theories that ascribe effectiveness to the design of international legal systems, to the ability of member states to sanction international judges, and to domestic legal and political factors. We also explore the possibility that rule of law islands may be emerging in other treaty-based systems subject to the jurisdiction of international tribunals.
