The Influence of the Andean Intellectual Property Regime on Access to Medicines in Latin America

This chapter is a contribution to Balancing Wealth and Health: Global Administrative Law and the Battle over Intellectual Property and Access to Medicines in Latin America, Rochelle Dreyfuss & César Rodríguez-Garavito, eds. Part I of the chapter explains how the repeated interactions between the Andean Tribunal of Justice (ATJ) and domestic IP agencies in the Andean Community helped to build an effective IP rule of law and to solidify pro-consumer interpretations of regional patent and trademark rules. Part II documents how ATJ judges and agency officials enabled Andean governments to resist pressure from the United States and its pharmaceutical industry to circumvent the flexibilities in regional IP rules. Part III considers the broader implications of the Andean experience for access to medicines in Latin America, drawing on examples from the national case studies in this volume

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 ATJ\u27s 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 ATJ\u27s active role in IP disputes because of the support of these agencies, which seek the Tribunal\u27s 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

The Influence of the Andean Intellectual Property Regime on Access to Medicines in Latin America

This chapter is a contribution to Balancing Wealth and Health: Global Administrative Law and the Battle over Intellectual Property and Access to Medicines in Latin America, Rochelle Dreyfuss & César Rodríguez-Garavito, eds. Part I of the chapter explains how the repeated interactions between the Andean Tribunal of Justice (ATJ) and domestic IP agencies in the Andean Community helped to build an effective IP rule of law and to solidify pro-consumer interpretations of regional patent and trademark rules. Part II documents how ATJ judges and agency officials enabled Andean governments to resist pressure from the United States and its pharmaceutical industry to circumvent the flexibilities in regional IP rules. Part III considers the broader implications of the Andean experience for access to medicines in Latin America, drawing on examples from the national case studies in this volume

A New International Human Rights Court for West Africa: The ECOWAS Community Court of Justice

The ECOWAS Community Court of Justice (ECCJ) is an increasingly active and bold international adjudicator of human rights violations in West Africa. Since acquiring jurisdiction over human rights issues in 2005, the ECCJ has issued several path-breaking judgments, including against the Gambia for the torture of journalists, against Niger for condoning modern forms of slavery, and against Nigeria for failing to regulate the multinational oil companies that polluted the Niger Delta. This article explains why ECOWAS member states authorized the ECCJ to review human rights suits by individuals but did not allow private actors to complain about violations of regional economic rules. In addition to explaining the ECCJ’s striking transformation, the article makes several other contributions. It illustrates how an existing international institution can be redeployed for new purposes; it highlights the contributions of civil society, supranational officials, and ECOWAS judges to expanding the Court’s mandate; it analyzes the ECCJ’s distinctive jurisdiction and access rules; and it shows how the ECCJ has survived challenges to its authority. Our analysis is based on original field research in Nigeria, including more than two-dozen interviews with judges, government officials, attorneys, and NGOs. We also draw upon the first-ever coding of all ECCJ decisions through 2010. The ECCJ’s transformation is also theoretically significant. The article’s final section and conclusion reassesses theories of regional integration, institutional change, and transnational legal mobilization in light of the ECCJ’s experience to demonstrate the implications of our findings for international institutions beyond West Africa

A New International Human Rights Court for West Africa: The ECOWAS Community Court of Justice

The ECOWAS Community Court of Justice (ECCJ) is an increasingly active and bold international adjudicator of human rights violations in West Africa. Since acquiring jurisdiction over human rights issues in 2005, the ECCJ has issued several path-breaking judgments, including against the Gambia for the torture of journalists, against Niger for condoning modern forms of slavery, and against Nigeria for failing to regulate the multinational oil companies that polluted the Niger Delta. This article explains why ECOWAS member states authorized the ECCJ to review human rights suits by individuals but did not allow private actors to complain about violations of regional economic rules. In addition to explaining the ECCJ’s striking transformation, the article makes several other contributions. It illustrates how an existing international institution can be redeployed for new purposes; it highlights the contributions of civil society, supranational officials, and ECOWAS judges to expanding the Court’s mandate; it analyzes the ECCJ’s distinctive jurisdiction and access rules; and it shows how the ECCJ has survived challenges to its authority. Our analysis is based on original field research in Nigeria, including more than two-dozen interviews with judges, government officials, attorneys, and NGOs. We also draw upon the first-ever coding of all ECCJ decisions through 2010. The ECCJ’s transformation is also theoretically significant. The article’s final section and conclusion reassesses theories of regional integration, institutional change, and transnational legal mobilization in light of the ECCJ’s experience to demonstrate the implications of our findings for international institutions beyond West Africa

The central elliptical galaxy in fossil groups and formation of BCGs

We study the dominant central giant elliptical galaxies in ``Fossil groups'' using deep optical (R-band) and near infrared (Ks-band) photometry. These galaxies are as luminous as the brightest cluster galaxies (BCGs), raising immediate interest in their link to the formation of BCGs and galaxy clusters. However, despite apparent similarities, the dominant fossil galaxies show non-boxy isophotes, in contrast to the most luminous BCGs. This study suggests that the structure of the brightest group galaxies produced in fossil groups are systematically different to the majority of BCGs. If the fossils do indeed form from the merger of major galaxies including late-types within a group, then their disky nature is consistent with the results of recent numerical simulations of semi-analytical models which suggest that gas rich mergers result in disky isophote ellipticals. We show that fossils form a homogeneous population in which the velocity dispersion of the fossil group is tightly correlated with the luminosity of the dominant elliptical galaxy. This supports the scenario in which the giant elliptical galaxies in fossils can grow to the size and luminosity of BCGs in a group environment. However, the boxy structure of luminous BCGs indicate that they are either not formed as fossils, or have undergone later gas-free mergers within the cluster environment.Comment: 5 pages, 4 figures, Accepted for publication in MNRAS letter

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

The Andean Community - a forty-year-old regional integration pact of small developing countries in South America - is widely viewed as a failure. In this Article, we show that the Andean Community has in fact achieved remarkable success within one part of its legal system. The Andean Tribunal of Justice (ATJ) is the world\u27s third most active international court, with over 1400 rulings issued to date. Over 90% of those rulings concern intellectual property (IP). The ATJ has helped to establish IP as a rule of law island in the Andean Community where national judges, administrative officials, and private parties actively participate in regional litigation and conform their behavior to Andean IP rules. In the vast seas surrounding this island, by contrast, Andean rules remain riddled with exceptions, under-enforced, and often circumvented by domestic actors. We explain how the ATJ helped to construct the IP rule of law island and why litigation has not spilled over to other issue areas regulated by the Andean Community. Our analysis makes four broad contributions to international law and international relations scholarship. First, we adopt and apply a broad definition of an effective rule of law, using qualitative and quantitative analysis to explain how the Andean legal system contributes to changing national decision-making in favor of compliance with Andean rules. Our definition and our explanation of the ATJ\u27s contributions to constructing an effective rule of law provide a model that can be replicated elsewhere. Second, we explain how the Andean legal system has helped domestic IP administrative agencies in the region resist pressures for stronger IP protection from national executives, the United States, and American corporations. We emphasize the importance of these agencies rather than domestic judges as key constituencies that have facilitated the emergence of an effective rule of law for IP. As a result of the agencies\u27 actions, Andean IP rules remain more closely tailored to the economic and social needs of developing counties than do the IP rules of the Community\u27s regional neighbors. Third, the reality that the ATJ is effective, but only within a single issue area, makes the Andean experience of broader theoretical interest. We offer an explanation for why Andean legal integration has not extended beyond IP. But our answer suggests avenues for additional research. We note that Andean IP rules are more specific than other areas of Andean law and that most administrative agencies in the region lack the autonomy needed to serve as compliance partners for ATJ rulings. We also find that, outside of IP, the ATJ is unwilling to issue the sort of purposive interpretations that encourages private parties to invoke Andean rules in litigation. The result is both a lack of demand for and supply of ATJ rulings. Fourth, our study of the Andean legal system provides new evidence to assess three competing theories of effective international adjudication - theories that ascribe effectiveness to the design of international legal systems, to the ability of member states to sanction international judges, and to domestic legal and political factors. We also explore the possibility that rule of law islands may be emerging in other treaty-based systems subject to the jurisdiction of international tribunals

(In)validity of large N orientifold equivalence

It has been argued that the bosonic sectors of supersymmetric SU(N) Yang-Mills theory, and of QCD with a single fermion in the antisymmetric (or symmetric) tensor representation, are equivalent in the $N\to\infty$ limit. If true, this correspondence can provide useful insight into properties of real QCD (with fundamental representation fermions), such as predictions [with O(1/N) corrections] for the non-perturbative vacuum energy, the chiral condensate, and a variety of other observables. Several papers asserting to have proven this large N ``orientifold equivalence'' have appeared. By considering theories compactified on $R^3 \times S^1$, we show explicitly that this large N equivalence fails for sufficiently small radius, where our analysis is reliable, due to spontaneous symmetry breaking of charge conjugation symmetry in QCD with an antisymmetric (or symmetric) tensor representation fermion. This theory is also chirally symmetric for small radius, unlike super-Yang-Mills. The situation is completely analogous to large-N equivalences based on orbifold projections: simple symmetry realization conditions are both necessary and sufficient for the validity of the large N equivalence. Whether these symmetry realization conditions are satisfied depends on the specific non-perturbative dynamics of the theory under consideration. Unbroken charge conjugation symmetry is necessary for validity of the large N orientifold equivalence. Whether or not this condition is satisfied on $R^4$ (or $R^3 \times S^1$ for sufficiently large radius) is not currently known.Comment: 23 pages, added discussion of P, T symmetry realizatio

Backlash Against International Courts in West, East and Southern Africa: Causes and Consequences

This paper discusses three credible attempts by African governments to restrict the jurisdiction of three similarly-situated sub-regional courts in response to politically controversial rulings. In West Africa, when the ECOWAS Court upheld allegations of torture by opposition journalists in the Gambia, that country’s political leaders sought to restrict the Court’s power to review human rights complaints. The other member states ultimately defeated the Gambia’s proposal. In East Africa, Kenya failed in its efforts to eliminate the EACJ and to remove some of its judges after a decision challenging an election to a sub-regional legislature. However, the member states agreed to restructure the EACJ in ways that have significantly affected the court’s subsequent trajectory. In Southern Africa, after the SADC Tribunal ruled in favor of white farmers in disputes over land seizure, Zimbabwe prevailed upon SADC member states to suspend the Tribunal and strip its power to review complaints from private litigants. Variations in the mobilization efforts of Community secretariats, civil society groups and sub-regional Parliaments explain why efforts to eliminate the three courts or narrow their jurisdiction were defeated in ECOWAS, scaled back in the EAC, and largely succeeded in SADC