Laurence R. Helfer

Overlegalizing Human Rights: International Relations Theory and the Commonwealth Caribbean Backlash Against Human Rights Regimes

This article raises the intriguing claim that international law can be overlegalized. Overlegalization occurs where a treatys 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.

Regime Shifting in the International Intellectual Property System

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.

Islands of Effective International Adjudication: Constructing an Intellectual Property Rule of Law in the Andean Community

Forty years ago, the small and underdeveloped nations on the mountainous western edge of South America formed a regional integration pact to promote economic growth, regulate foreign investment, and harmonize national laws. Overall, their enterprise has not turned out well. Riven by political schisms, economic shocks, and weak domestic legal and judicial systems, the five principal countries of the Andean Community—Bolivia, Colombia, Ecuador,Peru, and Venezuela— have failed to live up to their potential as South Americas second largest trading bloc. The member states have relaunched the Andean integration project and revised its policies on multiple occasions, with at best only mixed results. Not surprisingly, most commentators have ignored the Andean Community or dismissed it as a failure.

Flexibility in International Agreements

This chapter is a contribution to the forthcoming edited volume INTERNATIONAL LAW AND INTERNATIONAL RELATIONS: TAKING STOCK (Jeffrey Dunoff & Mark A. Pollack eds., Cambridge University Press 2012). The chapter provides an overview of flexibility mechanisms in international agreements and the role of such mechanisms in promoting or inhibiting international cooperation. Part I reviews the many flexibility devices available to treaty makers. It divides these tools into two broad categories: formal mechanisms (such as reservations, escape clauses, and withdrawal provisions) and informal practices (such as auto-interpretation, nonparticipation, and noncompliance). Part II reviews the international law and international relations scholarship on the design and use of treaty flexibility mechanisms, focusing on studies of exit and escape clauses. Part III highlights several conclusions that emerge from the burgeoning literature on treaty flexibility and suggests avenues for future research.

Transplanting the European Court of Justice: The Experience of the Andean Tribunal of Justice

Although there is an extensive literature on domestic legal transplants, far less is known about the transplantation of supranational judicial bodies. The Andean Tribunal of Justice (ATJ) is one of eleven copies of the European Court of Justice (ECJ), and the third most active international court. This article considers the origins and evolution of the ATJ as a transplanted judicial institution. It first reviews the literatures on legal transplants, neofunctionalist theory, and the spread of European ideas and institutions, explaining how the intersection of these literatures informs the study of supranational judicial transplants. The article next explains why the Andean Pacts member states decided to add a court to their regional integration initiative, why they adapted the European Community model, and how the ECJs existence has shaped the evolution of Andean legal doctrine and the political space within which the ATJ operates. We conclude by analyzing how the ATJs experience informs the challenges of supranational transplants and theories of supranational legal integration more generally.

The Andean Tribunal of Justice and its Interlocutors: Understanding Preliminary Reference Patterns in the Andean Community

In the European Union, national courts have been key intermediaries in helping to bolster and expand the authority of the European Court of Justice through its preliminary reference mechanism. This article analyzes the role of national judges in the Andean Community, a regional legal system whose judicial institution - the Andean Tribunal of Justice (ATJ) - was modeled directly on its European predecessor. Our analysis is based on an original coding of every publically available national court referral to the ATJ from 1987 to 2007 and interviews with over forty participants in the Andean legal system. We find that the relationship between the ATJ and national judges differs significantly from the relationship between the ECJ and its domestic judicial colleagues. As in Europe, references from national judges account for the vast majority of cases on the ATJs docket. But unlike in Europe, national courts are mostly passive intermediaries. Our coding reveals that national judges do not pose provocative questions to the ATJ, and that there is significant cross-national variation in referral patterns. Interviews corroborate what the data suggests: national judges have a circumscribed understanding of what Andean law requires of them. More than 90% of references involve technical issues of Andean intellectual property (IP) law and the registration decisions of domestic IP administrative agencies. National judges have embraced the ATJs active role in IP disputes because of the support of these agencies, which seek the Tribunals guidance to interpret vague areas of Andean law. Outside the area of IP, national judges are far more reluctant, contributing to the limited penetration of Andean law into national legal orders. We conclude by comparing the role of national judges in Europe to their role in the Andean context, extracting broader insights about the role of national judges in building international rules of law.

Why States Create International Tribunals: A Theory of Constrained Independence

INTRODUCTION ................................................................................................................................ 2 I. RATIONAL STATES, DELEGATION, AND THE PUZZLE OF INDEPENDENT INTERNATIONAL ADJUDICATION......................................................................................................................... 4 II. DELEGATING AUTHORITY TO INDEPENDENT INTERNATIONAL TRIBUNALS SERVES THE INTERESTS OF STATES.............................................................................................................. 5 A. Delegation Enhances the Credibility of International Commitments................................. 7 B. Triangulating the Interests of States and Independent Tribunals: ................................... 11 Three Multilateral Examples ............................................................................................. 11 1. “Deep” International Agreements................................................................................ 11 2. Treaties that Regulate Public Goods or Commons Problems ...................................... 12 3. Treaties that Create Rights or Benefits for Private Parties.......................................... 13 C. Dependent Tribunals and Bilateralism ............................................................................. 13 III. A THEORY OF CONSTRAINED INDEPENDENCE FOR INTERNATIONAL TRIBUNALS ........... 14 A. Formal and structural ex ante control mechanisms ......................................................... 18 B. Political ex ante control mechanisms ............................................................................... 19 C. Formal and structural ex post control mechanisms ......................................................... 22 D. Political ex post control mechanisms ............................................................................... 24 E. Discursive constraints of the global community of law.................................................... 25 IV. CONCLUSION...................................................................................................................... 27

Legitimacy and Lawmaking: A Tale of Three International Courts

Abstract This Article explores the relationship between the legitimacy of international courts (ICs) and expansive judicial lawmaking. We compare lawmaking by three regional integration courts - the Court of Justice of the European Union (CJEU), the Andean Tribunal of Justice (ATJ), and the ECOWAS Community Court of Justice (ECCJ). These courts have similar jurisdictional grants and access rules, yet each has behaved in a strikingly different way when faced with opportunities to engage in expansive judicial lawmaking. The CJEU is the most activist, but its audacious legal doctrines have been assimilated as part of the court’s legitimate authority. The ATJ and ECOWAS have been more cautious, but there is little to suggest that this caution has enhanced the legitimacy of either court. The ATJ has avoided serious challenges from governments, but its rulings have had little political impact. Conversely, the ECCJ’s circumspection has not shielded it from political opposition to its adjudication of clearly-established human rights. This pattern is at odds with the oft-voiced conventional wisdom that expansive judicial lawmaking undermines judicial legitimacy. Our modest goal in this Article is to problematize that claim and to posit an alternative hypothesis - that ICs spark legitimacy challenges due to the domestic political effects of their decisions, regardless of whether those decisions are expansionist.

Opposing International Justice: Kenya’s Integrated Backlash Strategy Against the ICC

The government of Kenya has employed a wide range of strategies to undermine the recently-dismissed prosecutions of President Uhuru Kenyatta and Deputy President William Ruto before the International Criminal Court (ICC). This Article argues that these strategies are part of an integrated backlash campaign against the ICC, one that encompasses seemingly unrelated actions in multiple global, regional and national venues. We identify three overarching themes that connect these diverse measures—politicizing complementarity, regionalizing political opposition, and pairing instances of cooperation and condemnation to diffuse accusations of impunity. By linking its discrete acts of opposition to these three themes, the government ultimately increased the effectiveness of its campaign against the Court. Our findings provide new evidence to analyze others instances of backlash against international courts and institutions.

Mapping the Interface Between Human Rights and Intellectual Property

There are now a broad range of political, economic, social, practical and philosophical issues that straddle the intersection of human rights and intellectual property. These fascinating and challenging issues are attracting increasing attention from judges, government officials, attorneys and scholars, whose activities are mapping the contours of a rapidly changing legal landscape. A personal anecdote illustrates how far the relationship between the two fields has evolved. When I started my academic career in the late 1990s and began to write about the two fields, a senior colleague took me aside and said: ‘These areas of law and policy have almost nothing in common, and the relationship between them isn’t very interesting. Focus your scholarship on only one of these legal regimes. You shouldn’t attempt to make contributions to both.’ I had two responses to this well-meaning advice. First, I acknowledged the historical isolation of two fields. But I pointed out that the foundational document of international human rights law, the 1948 Universal Declaration of Human Rights, provides that everyone has the right ‘to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he [or she] is the author,’ as well as the right ‘to enjoy benefits of scientific progress and its applications.’1 These references – long overlooked by governments, courts and commentators – reveal that the goals of incentivizing private innovation and promoting public access that underpin most intellectual property laws have also been concerns of the human rights movement since its founding. My second response to my senior colleague was to explain that my writing about both fields exposed me to the experiences and insights of two distinct legal communities who rarely interacted with each other. By straddling the divide between these groups, I learned from both and hoped to identify interesting legal issues that other scholars might have overlooked.