Volume 16, Issue 2 (Fall 2011)

This issue presents four pieces by scholars and students on a range of current international and comparative law issues. Available online at HeinOnline.

The Role of the International Trade Regime in Global Governance by Simon Lester. UCLA J. Int’l L. Foreign Aff. 209 (2011).

Trade agreements originated as narrow bargains for mutual tariff reductions between countries. Over the years, however, their scope has expanded considerably. First, rules to address domestic laws that discriminated, both overtly and covertly, against foreign products were added in order to ensure that tariff concessions were not circumvented. More recently, governments have negotiated trade agreement rules in a wide range of new areas, such as intellectual property protection, many of which only have a tenuous connection to trade. On the basis of this expansion, combined with the development of strong and effective enforcement mechanisms, the modern international trade regime now functions as a limited form of global governance. Partly as a result, the trade regime is in a precarious state today, with multilateral trade negotiations stalled and mass protests greeting many bilateral and multilateral negotiations. In this paper, I propose a framework for strengthening the regime, involving a more open and honest debate about the appropriate scope of the regime and re-focusing the trade regime on the core purpose of non-discrimination. As a corollary to this proposal, I argue that many of the issues that have been incorporated into trade agreements over the years should be addressed as part of a distributed and cooperative approach to global governance that involves other international organizations and softens the binding nature of the current trade rules in these areas.

Personal Immunity and President Omar Al Bashir: An Analysis Under Customary International Law and Security Council Resolution 1593 by Dan Terzian. 16 UCLA J. Int’l Foreign Aff. 279 (2011).

When the International Criminal Court issued an arrest warrant for Sudanese President Omar Al Bashir, the court only cursorily reasoned that Al Bashir did not possess personal immunity before the court. Though the court’s analysis was lacking, this Comment argues that the court can still arrest and prosecute Al Bashir because he does not possess personal immunity due to reasons not analyzed by the court. This argument rests on the theory that the Security Council removed Al Bashir’s personal immunity, not on the customary international law-based theory advanced by the court. This Comment rejects the theory that customary international law removes heads of state’s personal immunities because this practice lacks sufficient acceptance. And unless the Security Council supersedes customary international law, all current heads of state possess inviolate personal immunities that prohibit international tribunals from indicting, arresting, or prosecuting them. This Comment then argues that the Security Council superseded customary international law by referring the Darfur conflict to the International Criminal Court, thus removing Al Bashir’s personal immunity. In Security Council Resolution 1593, the Council granted the International Criminal Court substantial jurisdiction to adjudicate serious violations of international humanitarian law. Whenever the Security Council grants this type of jurisdiction to an international tribunal, it implicitly removes government officials’ personal immunities. Further, the Security Council confirmed this removal by implying that Sudanese officials do not possess personal immunities under the Rome Statute’s Article 98(1).

Are Developing Countries Playing a Better TRIPS Game? by Peter K. Yu. 16 UCLA J. Int’l L. Foreign Aff. 311 (2011).

The Agreement on Trade-Related Aspects of Intellectual Property Rights entered into force more than fifteen years ago. Although commentators have widely criticized the Agreement for its failure to address the needs, interests, conditions, and priorities of less developed countries, few have examined whether these countries have now attained greater success in shaping the development of the Agreement than they did before. This Article seeks to fill the void by examining the performance of these countries at various stages of development of the TRIPS Agreement. Utilizing game theory and game metaphors, this Article disaggregates the “TRIPS game” into five different mini-games: (1) negotiation; (2) implementation; (3) enforcement; (4) interpretation; and (5) compliance. The Article then analyzes the performance of less developed countries in these games. By documenting the state of play in each game, this Article highlights the complex and dynamic nature of TRIPS developments as well as the machinations of WTO members. The Article underscores the need for a more holistic perspective in studying the TRIPS Agreement.

The Evolution of the Prohibition on the Use of Force and its Conflict with Human Rights Protection: Balancing Equally Forceful Jus Cogens Norms by Austin Glassman. 16 UCLA J. Int’l Foreign Aff. 345 (2011).

After the Second World War, pursuant to Article 2(4) of the United Nations Charter, the United Nations formally prohibited threats and the use of force by its members. However, over time, the expansive interpretation of exceptions to the prohibition, the use of force by nations beyond the scope of traditionally accepted exceptions or justifications, and the development of evolving legal frameworks allowing for a more liberalized use of force policy has carved away at the general prohibition against the use of force, making the prohibition the exception rather than the rule. This article argues for the evolving, narrow constraint on the prohibition against the use of force, particularly when applied in the context of human rights. Since the protection of human rights is a fundamental tenant of the United Nations Charter, the prohibition should be relaxed when serious threats to human rights are present. In determining when the unilateral use of force would be permissible to protect against human rights violations, this article proposes a balancing test that weighs the need to protect human rights against the prohibition against the use of force. Subsequently, the article conducts a brief cost/benefit analysis of the consequences of limiting Article 2(4)’s prohibition.

Available online at HeinOnline.

%d bloggers like this: