BOSTON COLLEGE
Boston College International & Comparative Law Review

Student
Publications

Volume 25 2002 Number 2

[Pages 199-202]
Professor Cynthia C. Lichtenstein Honoree, Symposium: Globalization & the Erosion of Sovereignty

[Pages 203-212]
HUMANIZING THE FINANCIAL ARCHITECTURE OF GLOBALIZATION: A TRIBUTE TO THE WORK OF CYNTHIA LICHTENSTEIN
Frank J. Garcia*

Abstract:  This Tribute reviews the many contributions by Cynthia Lichtenstein to the literature on international financial markets. When viewed as a whole, Professor Lichtenstein’s work suggests that the globalization of the monetary system offers new opportunities for increased human welfare, but only if state and international regulators combine technical expertise with a genuine understanding of the human effects of global markets, much as Professor Lichtenstein does in her own work.

[Pages 213-234]
THE NEW TREATY MAKERS
Jose E. Alvarez*

Abstract:  The “erosion of sovereignty” that is said to characterize globalization is not generally associated with any deviation from the fundamental principle that states must freely consent before they can be said to be bound by any international agreement. With few exceptions, as with respect to Iraq in the wake of the Gulf War, states are rarely told that they must adhere to any particular treaty–despite emerging notions of “global governance.” The initiation and conclusion of modern treaties is still generally seen as the affirmation of sovereignty, rather than its diminution. Modern treaties, the only source of international obligation said to emerge from conscious attempts to make law and still requiring the unambiguous, genuine consent of states, remain the embodiment of sovereignty as classically understood. This Article challenges this view by examining how international organizations have altered the methods by which treaty negotiations are initiated as well as the final results achieved through such negotiations. If state sovereignty has been “eroded” or transformed in the wake of World War II, the new forms of treaty making and the new treaty makers are part of that story.

[Pages 235-256]
PRIVATE ACTORS IN PUBLIC INTERNATIONAL LAW: AMICUS CURIAE AND THE CASE FOR THE RETENTION OF STATE SOVEREIGNTY
Duncan B. Hollis*

Abstract:  Recent debates regarding the impact of globalization on state sovereignty have led some to conclude that globalization is eroding such sovereignty. This Article challenges that conclusion. It argues that neither the current frenzy of private actor participation in international fora nor the law-making functions of international organizations at which such activity is directed supplants state sovereignty in some zero-sum game paradigm. Examining the emergence of amicus curiae in international dispute settlement—specifically the controversy over amici participation in the WTO Asbestos case—the Article concludes that both private actor participation in international law and the exercise of law-making authorities by international organizations has occurred, and can only continue to occur, with the consent of states.

[Pages 257-272]
THE INTERNATIONAL MONETARY SYSTEM AND THE EROSION OF SOVEREIGNTY: ESSAY IN HONOR OF CYNTHIA LICHTENSTEIN
Andreas F. Lowenfeld*

Abstract:  When the major international organizations were established at the close of World War II, it was understood that they were concerned with international relations—political, economic, and social. As was made explicit in the U.N. Charter, but applicable in all the organizations, matters “essentially within the domestic jurisdiction of any state” were not the concern of the international organizations or the international community. In particular, the International Monetary Fund was to focus on member states’ balance of payments, exchange rates, and exchange controls, but not on their domestic policies or priorities. Gradually, it became clear that the wall between domestic and international policies could not be maintained. As the IMF moved to a regime of conditionality for the use of its resources, and thereafter to performance targets and deadlines, domestic policies of states became subjects of examination in ever increasing detail. Not only national budgets, taxes, and the money supply, but subsidies, wage policies, competition law, corporate governance, even accounting practices and regulatory reform became subject to scrutiny, negotiation and commitment. The Essay does not condemn this erosion of sovereignty, but points out that neither the member states nor the IMF have come up with a new theory to reflect the new reality, or reached agreement on where a new boundary may be set between national and international concerns.

[Pages 273-322]
PROTECTING HUMAN RIGHTS IN A GLOBALIZED WORLD
Dinah Shelton*

Abstract:  The shift in sovereignty accompanying globalization has meant that non-state actors are more involved than ever in issues relating to human rights. This development poses challenges to international human rights law, because for the most part that law has been designed to restrain abuses by powerful states and state agents. While globalization has enhanced the ability of civil society to function across borders and promote human rights, other actors have gained the power to violate human rights in unforeseen ways. This Article looks at the legal frameworks for globalization and for human rights, then asks to what extent globalization is good for human rights and to what extent human rights are good for globalization. It then considers several legal responses to globalization as they relate to the promotion and protection of human rights. This Article concludes that responses to globalization are significantly changing international law and institu-tions in order to protect persons from violations of human rights committed by non-state actors.

[Pages 323-342]
JAPANESE WHALING IN THE PACIFIC OCEAN: DEFIANCE OF INTERNATIONAL WHALING NORMS IN THE NAME OF "SCIENTIFIC RESEARCH," CULTURE, AND TRADITION
Reuben B. Ackerman*

Abstract:  Japanese whaling practices have always sparked controversy among the international community. Japan’s recent defiance of international environmental norms, however, risks a full-scale trade war led by U.S. demands to reform Japan’s whaling practices or suffer trade sanctions. Although the species’ endangered status may support sanctioning measures under international law, the United States must exercise caution in imposing restraints on international trade in light of its commitments under international trade agreements. The future of Japanese whaling remains unclear, but the international condemnation and call for restrictions is well-founded on international whaling and environmental norms.

[Pages 343-372]
TRADE EPIDEMIC: THE IMPACT OF THE MAD COW CRISIS ON EU-U.S. RELATIONS
Heather Berit Freeman*

Abstract:  When a new illness in cattle appeared in the United Kingdom twenty years ago, its ensuing nationwide and global repercussions could not have been envisioned. Not only did mad cow disease destroy the British cattle industry, it raised the fears of leaders and citizens around the world. Wary of tainted British beef, the European Union stepped in to attempt to curb the crisis while it was in its infancy. Soon the United States, in an effort to protect its own citizens and cattle industry, enacted measures banning European cattle products. The effects of the peculiar cattle disease reverberated through the global economy, heightening trade disputes between the United States and the European Union that have yet to achieve resolution.

[Pages 373-388]
DOMESTIC IMPLEMENTATION OF INTERNATIONAL OBLIGATIONS: THE QUEST FOR WORLD PATENT LAW HARMONIZATION
Adam Isaac Hasson*

Abstract:  Most all nations recognize the need to protect intellectual property in some form due to its potential value. In 1994, the signatory nations of the General Agreement of Tariffs and Trade signed the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPs), an ambitious international convention that set forth an international baseline for patent, copyright, and trademark protection. In addition to providing procedures for the settlement of property disputes, one practical effect of TRIPs has been the harmonization of the world’s patent laws. In 1994, the United States passed the Uruguay Round Agreement Act, legislation that implemented several changes to domestic patent law required by TRIPs. Although opinions, especially those of developing nations, debate the fairness of TRIPs, the Agreement represents an effective balance among competing interests and a major step towards world patent law harmonization.

[Pages 389-418]
THE DEATH OF TAX HAVENS?
Akiko Hishikawa*

Abstract:  The Organization for Economic Co-operation and De-velopment has been fighting for the elimination of harmful tax practices since 1998, through the creation of a global co-operative framework. In June, 2000, the OECD listed thirty-five jurisdictions considered to be tax havens. These jurisdictions originally had until July 31, 2001 to make commitments for the elimination of harmful tax practices. Through subsequent meetings between the OECD and the jurisdictions, various modifications were made to the OECD guidelines, including an extension of the commitment deadline until February, 2002, and the postponement of the defensive measures until April, 2003. This Note will examine the OECD, the various meetings held between the OECD and the tax havens, the results achieved by the OECD, and the implications of the pending deadline.

[Pages 419-448]
COMING OUT OF THE DARK: ACHIEVING JUSTICE FOR VICTIMS OF HUMAN RIGHTS VIOLATIONS BY SOUTH AMERICAN MILITARY REGIMES
Roseann M. Latore*

Abstract:  The military regimes of the countries of the Southern Cone of South America cooperated under Operation Condor to eradicate all political opposition throughout the 1960s and 1970s. The military leaders of these regimes are only now being brought to justice for their crimes, which include widespread killing and “disappearances” of political opponents and, in Argentina, the stealing of babies born to doomed political dissidents. It is only in the last decade that these crimes have been brought to light so that the perpetrators can be brought to justice and nations deeply wounded can begin to heal.