BOSTON COLLEGE
Boston College International & Comparative Law Review

Student
Publications

Volume 27 2004 Number 2

[Pages 187-194]
INTERRELATIONSHIPS: INTERNATIONAL ECONOMIC LAW AND DEVELOPING COUNTRIES
C. O'Neal Taylor*

Abstract:  This Article is an introduction to six articles that were presented at a symposium entitled “Interrelationships: International Economic Law and Developing Countries,” held in Washington, D.C. in October 2002 by the American Society for International Law’s International Economic Law Group.

[Pages 195-218]
DEVELOPMENT DECISION-MAKING AND THE CONTENT OF INTERNATIONAL DEVELOPMENT LAW
Daniel D. Bradlow*

Abstract:  International development law deals with the rights and duties of states and other actors in the development process. As the consensus view of the development process disintegrated during the 1970s and 1980s, the agreement on the content of international development law also began to break down. Today there are two competing idealized views of development. The first, the “traditional view,” maintains that development is about economic growth, which can be distinguished from other social, cultural, environmental, and political development issues in society. The second, the “modern view,” maintains that development is an integrated process of change involving intertwined economic, social, cultural, political, and environmental dimensions. These two views of development lead to different perceptions of the substantive content of development law, of the importance of sovereignty, and of the relationship between national and international law in the law applicable to development.

[Pages 219-285]
MONTERREY CONSENSUS ON FINANCING FOR DEVELOPMENT: RESPONSE SOUGHT FROM INTERNATIONAL ECONOMIC LAW
Inaamul Haque* & Ruxandra Burdescu**

Abstract:  The Monterrey Conference held in Mexico in March 2002 was an exceptionally significant event, qualitatively different from any other U.N. conference. It was characterized by the inclusion of all the stakeholders; preparations were marked by constructive interaction between developed and developing countries; and it was free from polemics and usual acrimony between rich and poor nations. The Consensus Document is profoundly different from other landmark U.N. documents. Developing countries have become more realistic, responsible, and mature, while developed countries—having witnessed the tragic events of September 11 and becoming cognizant of the indivisibility of development and security—exhibited a new spirit of accommodation. Faithful implementation and sustaining of the Monterrey spirit is now critically important. In the context of this Article, the Monterrey Conference represents demand, and a supply response is expected from international economic law. Much good is expected from the synergy between the Conference and international economic law.

[Pages 1-4]

[Pages 291-318]
BEYOND SPECIAL AND DIFFERENTIAL TREATMENT
Frank J. Garcia*

Abstract:  Developing country concern over flawed special and differential treatment (S&D) provisions has already contributed to the failed Seattle and Cancún WTO Ministerial Meetings. In order to succeed, the current WTO Doha Development Round must go beyond simply reforming existing S&D provisions, important as that is. Developing countries must re-focus WTO trade and development policy around the twin goals of development and fairness. Developing countries need a comprehensive agreement on S&D clarifying that development, not trade liberalization, is the number one economic policy goal of developing countries, and that fairness, not charity, is the basis for development. Such an agreement should also establish adequate domestic policy space for minimally-distorting development policies; create binding and unconditional preferential market access; provide adequate time to implement complex new trade agreements; create truly “precise, effective and operational” S&D provisions; and adequately fund technical assistance.

[Pages 319-370]
CHINA'S WTO ACCESSION: ECONOMIC, LEGAL, AND POLITICAL IMPLICATIONS
Karen Halverson*

Abstract:  This Article discusses the unparalleled economic, legal, and political change that has confronted China during WTO accession. The Article focuses on the relationship between China’s unique WTO accession process and China’s reform over the past two decades. The author suggests that WTO accession has acted as a lever for economic and legal reform by locking in reform and making it irrevocable. The Article begins with a historical background of China’s long road to accession and the way that this process worked to further the previously instated economic reform program. Next, the Article analyzes the manner in which WTO accession has initiated profound legal reform. The final section of the Article discusses the effects of adhering to WTO-related obligations on the future of political reform and suggests that the resulting weakened control of the Communist Party may ultimately lead either to continued growth and political liberalization or to mass unrest and a backlash of government repression.

[Pages 371-428]
POVERTY AND SOCIAL ANALYSIS OF TRADE AGREEMENTS: A MORE COHERENT APPROACH?
Eugenia McGill*

Abstract:  The collapse of trade negotiations in Cancún in September 2003 shook confidence in both the Doha Development Agenda and the commitments of industrialized countries and international economic institutions to pursue “coherent” trade and development policies. This Article critically examines the dual commitments of development institutions, especially the World Bank, to trade liberalization and poverty reduction, and the challenges to achieving “policy coherence” through trade “mainstreaming,” “capacity building,” and “impact assessments.” In particular, the Article considers the feasibility of adapting existing tools for poverty and social analysis to assess trade policies and agreements. The Article uses gender as one possible lens through which to analyze the potential impacts of trade policies on vulnerable groups in developing countries. While recognizing their limitations, the Article supports the development of practical tools for poverty and social analysis for use by government trade offices and other ministries, development institutions, research institutes, and civil society groups in developing countries. However, for these tools to be useful, developing countries must have the “policy space” to choose the trade policy options that best support their poverty reduction strategies and broad development goals.

[Pages 429-452]
BALANCING HUMAN RIGHTS AND INVESTOR PROTECTION: A NEW APPROACH FOR A DIFFERENT LEGAL ORDER
Todd Weiler*

Abstract:  Recognizing the political need to show that transnational investors should shoulder “responsibilities” in addition to the international “rights” to which they are granted access under investment protection treaties, this Article proposes a sort of “counterclaim” mechanism for use in future treaties. The mechanism would permit individuals who live in countries receiving foreign investment to bring claims against foreign investors for the violation of serious international rules by their agents or employees operating in the host country. Such rules would include safeguards for international human rights that might be violated in the operation of an investment, as has been documented recently before U.S. courts operating under the Alien Tort Claims Act. The Article concludes by providing an appendix with draft text that could be adopted by the negotiators of future bilateral investment treaties.

[Pages 453-476]
STATE FAILURE AND THE USE OF FORCE IN THE AGE OF GLOBAL TERROR
Ben N. Dunlap*

Abstract:  The expansion of U.S. counterterrorist operations throughout the world coincides with a growing sense among some U.S. policymakers that so-called “failed states” pose grave threats to international security. The governments of failed states have weakened to the point that they can no longer provide public goods, such as territorial integrity, economic infrastructure, and physical security. U.S. defense strategists suspect that the lawlessness of failed states may do more to undermine security in the United States than direct confrontation by hostile governments. Denying terrorists the sanctuary they seek in failed states may become a central feature in the war on terror, and it is likely that the United States will use preemptive force against suspected terrorists inside a state that is incapable of policing itself. This Note examines the legality of using preemptive military force against suspected terrorists located in failed states.

[Pages 477-500]
THE DEVELOPMENT OF MORAL HARASSMENT (OR MOBBING) LAW IN SWEDEN AND FRANCE AS A STEP TOWARDS EU LEGISLATION
Maria Isabel S. Guerrero*

Abstract:  Moral harassment (or mobbing) is one of the most rapidly emerging workplace violence complaints, affecting around twelve million workers in the EU annually. In 1993, Sweden was the first EU country to enact legislation against moral harassment with its Ordinance on Victimization at Work. Through the Social Modernization Law in 2002, France added both civil and criminal provisions condemning moral harassment. This Note explores the Swedish and French laws and the psychological theories by Heinz Leymann and Marie-France Hirigoyen, respectively, that preceded them. Since existing EU legislation is inadequate in covering moral harassment, a new directive should be adopted. This new directive could be modeled off of several exemplary existing directives and should consider various provisions of the Swedish and French laws, as well as the analyses of Leymann and Hirigoyen.

[Pages 501-528]
INTERNATIONAL LAW AND THE RAMIFICATIONS OF THE SARBANES-OXLEY ACT OF 2002
Jonathan Shirley*

Abstract:  This Note examines the international implications of the Sarbanes-Oxley Act of 2002 (SOX). First, it identifies the relevant provisions of SOX and its impact on securities regulation generally. Second, it discusses how SOX impacts foreign companies that list securities on U.S. exchanges. Third, it analyzes how SOX is different from other U.S. securities regulations and discusses the consequences of its extraterritorial application.

[Pages 529-559]
REAPING WHAT THEY SOW: THE BASMATI RICE CONTROVERSY AND STRATEGIES FOR PROTECTING TRADITIONAL KNOWLEDGE
Sumathi Subbiah*

Abstract:  Traditional knowledge (TK) is a form of intellectual production that is a source of economic and cultural value, especially for local communities in developing countries. Yet, a legal gap exists between the kinds of protections afforded by existing intellectual property (IP) law and TK. This legal gap poses serious consequences for trade relations and the relations between developing and developed countries. Using the controversy in which the U.S.-based RiceTec Company attempted to gain IP rights over basmati rice derived from traditional sources, this Note explains the legal gap that exists and how it manifested itself in U.S. IP law. This Note also argues that TK products like basmati rice, while not strong candidates to receive patent protection, are strong candidates to receive geographical indication protection.