Sub-Regional Courts in Africa: Litigating the Hybrid Right to Freedom of Movement

Human rights attorneys and civil society groups in Africa have recently focused their advocacy efforts on sub-regional courts associated with economic integration communities in East, West and Southern Africa. The East African Court of Justice (EACJ), the Court of Justice of the Economic Community of West African States (ECOWAS), and the Tribunal of the Southern African Development Community (SADC) have received few suits challenging trade restrictions and other barriers to sub-regional integration. Instead, and surprisingly, the courts’ dockets are dominated by complaints alleging violations of international human rights law.This article offers the first analysis of EACJ, ECOWAS Court and SADC Tribunal decisions concerning the free movement of persons. Freedom of movement is a hybrid legal right. It is protected in the African Charter on Human and Peoples’ Rights and in other human rights instruments, but it is also a central pillar of all regional integration systems. Free movement case law thus offers a revealing lens through which to examine how African sub-regional courts decide which litigants have access to justice, interpret international legal norms, and fashion the remedies awarded to successful complainants

The Effectiveness of International Adjudicators

This chapter, in the Oxford Handbook of International Adjudication, provides an overview of the burgeoning literature on the effectiveness of international courts and tribunals (ICs). It considers four dimensions of effectiveness that have engendered debates among scholars or received insufficient scrutiny. The first dimension, case-specific effectiveness, evaluates whether the litigants to a specific dispute change their behavior following an IC ruling, an issue closely linked to compliance with IC judgments. The second variant, erga omnes effectiveness, assesses whether IC decisions have systemic precedential effects that influence the behavior of all states subject to a tribunal’s jurisdiction. The third approach, embeddedness effectiveness, evaluates the extent to which ICs anchor their judgments in domestic legal orders, enabling national actors to remedy potential treaty violations at home and avoid the need for international litigation. The fourth type, norm-development effectiveness, considers how IC decisions contribute to building a coherent body of international jurisprudence. For each type of effectiveness, the chapter reviews recent studies, identifies contested or under-analyzed issues, and suggests paths for future research

Redesigning the European Court of Human Rights: Embeddedness as a Deep Structural Principle of the European Human Rights Regime

The European Court of Human Rights (ECHR) is the crown jewel of the world’s most advanced international system for protecting civil and political liberties. In recent years, however, the ECHR has become a victim of its own success. The Court now faces a docket crisis of massive proportions, the consequence of the growing number of states subject to its jurisdiction, its favourable public reputation, its expansive interpretations of individual liberties, a distrust of domestic judiciaries in some countries, and entrenched human rights problems in others. In response to this growing backlog of individual complaints, the Council of Europe has, over the last five years, considered numerous proposals to restructure the European human rights regime and redesign the European Convention on Human Rights (ECHR). This article argues that these proposals should be understood not as ministerial changes in supranational judicial procedure, nor as resolving a debate over whether the ECHR should strive for individual or constitutional justice, but rather as raising more fundamental questions concerning the Court’s future identity. In particular, the article argues for recognition of ‘ embeddedness ’ in national legal systems as a deep structural principle of the ECHR, a principle that functions as a necessary counterpoint to the subsidiary doctrine that has animated the Convention since its founding. Embeddedness does not substitute ECHR rulings for the decisions of national parliaments or domestic courts. Rather, it requires the Council of Europe and the Court to bolster the mechanisms for governments to remedy human rights violations at home, obviating the need for individuals to seek supranational relief and restoring countries to a position in which the ECHR’s deference to national decision-makers is appropriate

World Music on a U.S. Stage: A Berne/TRIPs and Economic Analysis of the Fairness in Music Licensing Act

This article analyzes the dispute settlement proceedings pending before the World Trade Organization (WTO) concerning the Fairness in Music License Act of 1998, a new provision of the US Copyright Act that exempts many bars, restaurants, and retail stores from paying license fees for performing broadcast music in their establishments. In May 1999, the European Community challenged the Act, and its predecessor homestyle exemption, as a violation of the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPs) and the Berne Convention for the Protection of Literary and Artistic Works (Berne). The FMLA dispute is the first time in history that US copyright laws will be judged by an international tribunal. The case is an embarrassing one for the United States, which has recently pursued a policy of aggressively encouraging other nations to provide strong legal protections for copyrighted works. Although officials within the Clinton Administration warned legislators that the Fairness in Music Licensing Act might be incompatible with the Berne and TRIPs treaties, Congress enacted the statute over their objections. Thus, in the first year of the new century, Congress may be faced with an unprecedented choice: modify the Copyright Act to satisfy the demands of international trade jurists or face retaliatory trade sanctions by the EC. In addition to analyzing the legal arguments available to the US and the EC under the Berne and TRIPs treaties, this article also seeks to explain why Congress deliberately chose to ignore past US intellectual property policy. Using insights from law and economics and from a study of the history of laws and licensing practices governing secondary uses of broadcast music, the article demonstrates how an increasingly broad free use exemption developed for businesses playing radio and television music. It then draws on these economic and historical insights to develop legislative reform proposals that are both compatible with United States\u27 treaty obligations and that encourage performance rights organizations and associations of copyright users to reach an efficient private agreement to resolve the WTO dispute

Collective Management of Copyrights and Human Rights: An Uneasy Alliance Revisited

This essay analyzes the “creators’ rights” provisions of the International Covenant on Economic Social and Cultural Rights (ICESCR) in the context of the collective administration of copyright and neighboring rights and the policies and practices of collective management organizations (CMOs). It also addresses other human rights treaties and international court rulings relevant to collective rights management. The essay begins with an overview of the ICESCR Committee’s General Comment on ICESCR Article 15(1)(c), “the right of everyone to benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.” It then analyzes the key provisions of the General Comment relevant to the collective administration of copyright and neighboring rights. The essay next considers two legal and policy issues with important human rights implications: whether membership in CMOs should be mandatory, and whether CMOs should promote national culture. The essay concludes by evaluating the practical implications of adopting a human rights framework to analyze collective management issues

Flexibility in International Agreements

This chapter is a contribution to the forthcoming edited volume INTERNATIONAL LAW AND INTERNATIONAL RELATIONS: TAKING STOCK (Jeffrey Dunoff & Mark A. Pollack eds., Cambridge University Press 2012). The chapter provides an overview of flexibility mechanisms in international agreements and the role of such mechanisms in promoting or inhibiting international cooperation. Part I reviews the many flexibility devices available to treaty makers. It divides these tools into two broad categories: formal mechanisms (such as reservations, escape clauses, and withdrawal provisions) and informal practices (such as auto-interpretation, nonparticipation, and noncompliance). Part II reviews the international law and international relations scholarship on the design and use of treaty flexibility mechanisms, focusing on studies of exit and escape clauses. Part III highlights several conclusions that emerge from the burgeoning literature on treaty flexibility and suggests avenues for future research