Chicago Journal of International Law 

About: Chicago Journal of International Law is an academic journal. The journal publishes majorly in the area(s): International law & Human rights. It has an ISSN identifier of 1529-0816. Over the lifetime, 473 publications have been published receiving 5980 citations.

The Law of Peoples

Abstract: The Law of Peoples John Rawls Harvard 1999 John Rawls, the great political philosopher, has turned his reflections to questions of international justice, much as his philosophical ancestor Kant did toward the end of his career. Indeed, Kant's conception of a "pacific federation" of states in Perpetual Peace is Rawls's acknowledged model for the "realistic utopia" sketched in The Law of Peoples, which expands upon his 1993 essay by the same title (without, however, revising its basic argument). Despite differing philosophical constraints and geopolitical conditions, both Kant and Rawls aim to develop an ideal normative framework for international law that accommodates a measure of realism and rejects the idea of a world-state. Unfortunately, in its uncritical acceptance of so-called "decent hierarchical societies" even at the level of ideal theory, the normative claim of Rawls's Law of Peoples is undermined. This philosophical appeasement, meant to secure perpetual peace in our time through a moderately demanding Law of Peoples that liberal and "decent" hierarchical societies alike can endorse, departs fundamentally from Kant's cosmopolitanism. For Kant, the "First Definitive Article of a Perpetual Peace-as opposed to a temporary interruption of hostilities-is that each member state of the foedus pacif cum must have a republican form of government, which is partly founded upon "the principle of legal equality for everyone (as citizens)." By contrast, Rawls weakens his ideal of international justice to buy the assent of hierarchical societies, which by definition lack equality among citizens, at the price of sacrificing a theoretical basis for justifying reforms of the practices and institutions of these hierarchical societies above a minimal level of decency. Rawls's complex argument begins by extending the original position, in which principles of justice for the basic structure of society are chosen under epistemic constraints that ensure fairness, from a single liberal society to what he calls the Society of Liberal Peoples. In a second step, though still within ideal theory, he argues that the substantive principles comprising the Law of Peoples are also acceptable to decent hierarchical societies, which possess decent consultation hierarchies and common good conceptions of justice. Despite being inegalitarian, decent hierarchical societies do respect basic human rights, allow some dissent, and at least consult with representatives of groups whose members are denied full citizenship rights. …

The Justice Cascade: The Evolution and Impact of Foreign Human Rights Trials in Latin America

Abstract: I. INTRODUCTION During the Falklands/Malvinas War of 1982, the British captured Argentine Navy Captain Alfredo Astiz. Non-governmental human rights organizations accused Astiz, a notorious figure during Argentina's "dirty war," of involvement in the disappearance of two French nuns, the arrest and killing of a Swedish girl, and the interrogation, torture, and disappearance of hundreds of Argentines at the Naval School of Mechanics in Buenos Aires.1 After his capture, France and Sweden asked to question Astiz concerning their nationals, and the British transported him to London for that purpose. Astiz, availing himself of the protections afforded by the Geneva Convention on Prisoners of War, refused to answer. Although there was substantial evidence against him and the Geneva Conventions do not shield prisoners of war from prosecution for human rights crimes, neither country sought his extradition, nor did Britain entertain trying him in the United Kingdom.2 Instead, he was repatriated to Argentina. Seventeen years later, the British government arrested Chilean General and former President Augusto Pinochet on a Spanish extradition warrant for torture and other human rights crimes. This time, the British courts assiduously considered the jurisdictional issues posed by the Spanish request and determined that the Spanish courts had jurisdiction to try Pinochet for crimes committed in Chile over a decade before. Although British authorities ultimately allowed Pinochet to return to Chile, finding that he was too incapacitated to stand trial, the events in Europe had important political repercussions in Chile that are now rippling across Latin America and the rest of the world. Taking a lesson from Spain, a Netherlands court has determined that under a theory of universal jurisdiction it can try former Surinamese military dictator Desi Bouterse for human rights crimes committed in Suriname in 1982.3 From a political point of view, it would have been easier to try Astiz in 1982 than Pinochet in 1999. Astiz was a mid-level naval officer of a country then at war with Britain. Trying him for human rights violations would have given substance to the British government's rhetoric about the repressive nature of the Argentine regime. Pinochet was a former head of state and current senator-for-life of a country that had supported Great Britain during the Falklands/Malvinas War. This Article examines what changed between 1982 and 1999 that made Pinochet's arrest in Britain possible. We address two main questions: (1) why, in the last two decades of the 20th century, was there a major international norms shift towards using foreign or international judicial processes to hold individuals accountable for human rights crimes; and (2) what difference have foreign judicial processes made for human rights practices in the countries whose governments were responsible for those crimes. A. THE IMPETUS FOR THE "JUSTICE CASCADE" We argue that the surge of foreign judicial proceedings was neither spontaneous, nor the result of the natural evolution of law in the countries where the trials occurred. Rather, it was the result of the concerted efforts of small groups of activist lawyers who pioneered the strategies, developed the legal arguments, often recruited the plaintiffs and/or witnesses, marshaled the evidence, and persevered through years of legal challenges. These groups of lawyers resemble an advocacy network, in that they are interconnected groups of individuals bound together by shared values and discourse who engage in dense exchanges of information and services.4 The transnational justice network was atypical, however, because its membership was confined to a handful of groups of lawyers with appreciable technical expertise in international and domestic law who systematically pursued the tactic of foreign trials. In this sense, the transnational justice network resembles what political scientists call an epistemic community-a network of professionals engaged in a common policy enterprise with recognized expertise and competence in the particular domain and an authoritative claim to policy-relevant knowledge in that issue or domain. …

TRIPS, pharmaceutical patents, and access to essential medicines: a long way from Seattle to Doha.

Abstract: I. INTRODUCTION Infectious diseases kill over 10 million people each year, more than 90 percent of whom are in the developing world.1 The leading causes of illness and death in Africa, Asia, and South America-regions that account for four-fifths of the world's population-are HIV/AIDS, respiratory infections, malaria, and tuberculosis. In particular, the magnitude of the AIDS crisis has drawn attention to the fact that millions of people in the developing world do not have access to the medicines that are needed to treat disease or alleviate suffering. Each day, close to eight thousand people die of AIDS in the developing world.2 The reasons for the lack of access to essential medicines are manifold, but in many cases the high prices of drugs are a barrier to needed treatments. Prohibitive drug prices are often the result of strong intellectual property protection. Governments in developing countries that attempt to bring the price of medicines down have come under pressure from industrialized countries and the multinational pharmaceutical industry. The World Trade Organization ("WTO") Trade-Related Aspects of Intellectual Property Rights Agreement ("TRIPS" or "Agreement"), which sets out the minimum standards for the protection of intellectual property, including patents for pharmaceuticals, has come under fierce criticism because of the effects that increased levels of patent protection will have on drug prices. While TRIPS does offer safeguards to remedy negative effects of patent protection or patent abuse, in practice it is unclear whether and how countries can make use of these safeguards when patents increasingly present barriers to medicine access. The Fourth WTO Ministerial Conference, held in 2001 in Doha, Qatar, adopted a Declaration on TRIPS and Public Health ("Doha Declaration" or "Declaration") which affirmed the sovereign right of governments to take measures to protect public health. Public health advocates welcomed the Doha Declaration as an important achievement because it gave primacy to public health over private intellectual property, and clarified WTO Members' rights to use TRIPS safeguards. Although the Doha Declaration broke new ground in guaranteeing Members' access to medical products, it did not solve all of the problems associated with intellectual property protection and public health. II. THE ACCESS PROBLEM AND INTELLECTUAL PROPERTY A number of new medicines that are vital for the survival of millions are already too costly for the vast majority of people in poor countries. In addition, investment in research and development ("R&D") towards the health needs of people in developing countries has almost come to a standstill. Developing countries, where three-quarters of the world population lives, account for less than 10 percent of the global pharmaceutical market. The implementation of TRIPS is expected to have a further upward effect on drug prices, while increased R&D investment, despite higher levels of intellectual property protection, is not expected.3 One-third of the world population lacks access to the most basic essential drugs and, in the poorest parts of Africa and Asia, this figure climbs to one-half Access to treatment for diseases in developing countries is problematic either because the medicines are unaffordable, have become ineffective due to resistance, or are not sufficiently adapted to specific local conditions and constraints. Many factors contribute to the problem of limited access to essential medicines. Unavailability can be caused by logistical supply and storage problems, substandard drug quality, inappropriate selection of drugs, wasteful prescription and inappropriate use, inadequate production, and prohibitive prices. Despite the enormous burden of disease, drug discovery and development targeted at infectious and parasitic diseases in poor countries has virtually ground to a standstill because drug companies in developed and developing nations simply cannot recoup the cost of R&D for products to treat diseases that abound in developing countries. …

Cross-Listing and Corporate Governance: Bonding or Avoiding?

Abstract: I. INTRODUCTION In their seminal survey of corporate governance, Shleifer and Vishny distill the issue into a blunt question: "How do [the suppliers of finance] make sure that managers do not steal the capital they supply or invest it in bad projects?"1 The Enron/Arthur Andersen debacle and the ensuing waves of scandal vividly proved that American investors may face this question in the most acute form. Yet even today, many would argue that in a global comparison, American securities markets provide public investors with a more hospitable and protective environment than most other markets around the world. American markets still fare better in terms of the legal rules governing them, the legal professionals that work to enforce the regime, and a sophisticated court system that provides the necessary infrastructure for a well-functioning corporate governance system. The 2002 wave of scandal tarnished the reputation of the American market,2 but has not eroded it completely. The American governance environment is out for rent. Foreign firms wishing to enjoy the benefits of being subject to the American regime can readily do so by cross-listing their securities on an American market-even without raising capital in the United States. The idea that foreign firms actually engage in cross-listing with a view towards improving their corporate governance is often attributed to Jack Coffee.3 Bernard Black generalized this insight in several dimensions and coined the metaphor "piggybacking" to describe such renting of a country's corporate governance system by foreign corporations.4 In this view, cross-listing on a foreign stock market can serve as a bonding mechanism for corporate insiders to commit credibly to a better governance regime. Cross-listing could thus become a vehicle for international convergence towards globally desirable governance regimes. This article questions the bonding role of cross-listing. Based on a comprehensive survey of the literature, I argue that this role has been greatly overstated. A large body of evidence, using various research methodologies, indicates that the bonding theory is unfounded. Indeed, the evidence supports an alternative theory, which may be called "the avoiding hypothesis." To the extent that corporate governance issues play a role in the cross-listing decision, it is a negative role. The dominant factors in the choice of cross-listing destination markets are access to cheaper finance and enhancing the issuer's visibility. Corporate governance is a second-order consideration whose effect is either to deter issuers from accessing better-regulated markets or to induce securities regulators to allow foreign issuers to avoid some of the more exacting domestic regulations. Overall, the global picture of cross-listing patterns is best described by a model of informational distance, which comprises elements of geographical and cultural distance. A key weakness in some bonding-by-cross-listing theses-common among finance scholars-is that they are insensitive to crucial features of the US securities regulation regime.5 As it happens, the regulatory regime that is out for rent by foreign issuers differs markedly from the regime that applies to domestic American issuers. The shortcomings of the domestic American regime that recently came to light notwithstanding, the regime that governs foreign issuers is inferior to the former regime in significant respects. Generally speaking, the foreign issuer regime "cuts corners" exactly on the issues of corporate governance relating to corporate insiders. The Securities and Exchange Commission ("SEC") has cut these corners on purpose. Evidence further suggests that the SEC complements this strategy with a "hands-off" informal policy of nonenforcement toward foreign issuers.6 The evidence surveyed in this article indicates that cross-listings in the US fail to reflect positive effects that could be attributed to corporate governance improvements. …

Justice, Institutions, and Multiple Equilibria

Abstract: Schelling's concept of the focal-point effect in games with multiple equilibria is among the most important ideas in social theory. When justice is recognized as a criterion for identifying focal equilibria, we see how justice can affect the rational behavior of selfish economic actors. The foundations of political institutions can be understood in terms of focal equilibrium selection in a more fundamental game. This paper probes these ideas with some simple game-theoretic examples. Multiple equilibria are analyzed in a rival-claimants game, and this coordination game is extended to simple models of property rights, political institutions, boundaries, and economic investment. I. INTRODUCTION How can justice influence the decisions of a rational economic agent? In this paper, I seek a fundamental perspective on this question by considering some simple game-theoretic models where people's treatment of each other may be rationally guided by considerations of justice. In particular, this paper argues that the rational supply of justice is essentially connected with questions of multiple equilibria in games. More broadly, I argue here that the foundations of any social institution may be understood in terms of more fundamental games that have multiple equilibria. Questions about the supply of justice are ancient in the literature of social philosophy. We may begin with a definition of justice cited in Book 1 of Plato's Republic: that justice is giving each person what is due to him.1 But it is difficult for economic theorists to accept Plato's subsequent suggestion that a good society could create an ample supply of justice simply by educating its rulers to love justice above all else. Such ideas of culturally-determined endogenous preferences are very hard to assimilate into economic analysis because they hold the potential of trivializing all our questions about designing or reforming social institutions. It is an economist's job to develop methodologies for analyzing how changes in the structure of institutions may affect people's behavior and welfare. In such questions, we do not want to assume that the problems of poverty could be solved simply by educating the poor to develop a taste for their plight. Virtually any institution could generate better social outcomes if everyone could be motivated solely by a benevolent desire to raise the aggregate welfare of the whole society. To avoid such trivialization of questions about institutional reforms, most economic analysis has been based on a restrictive assumption that individuals' fundamental motivations are generally selfish and materialistic. If an institution cannot perform well under such an assumption, then we have grounds for seeking to reform it. The great successes of economic analysis have been based on this approach. But if everyone is a selfish materialist, then how can anyone be motivated to treat another person better simply because such better treatment is justly "owed" to him? If there were only one decisionmaker in the world, then a person who does not intrinsically care about behaving justly could be induced to respond to demands of justice only if he were otherwise completely indifferent among his behavioral options. Such complete indifference could not provide more than a fragile basis for the supply of justice. But when we consider games with many decisionmakers, we often find multiple equilibria. That is, many different patterns of behavior among the players may be rationally sustained as unique best responses to each other. In such situations, criteria of justice may be a crucial determinant of each individual's rational behavior precisely because he expects everyone else's behavior to be influenced by the same concepts of justice. Thus, justice may be rationally supplied by selfish individuals because justice is a criterion for selecting among equilibria of a game. Although this point is simple, it may have been relatively neglected in economic literature because of a methodological bias against studying games that have many equilibria. …