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Whenever a lawyer or historian describes how a particular action “violates international law” many people stop listening or reading further. It is a bit alienating to hear the words “this action constitutes a violation of international law” time and time again – and especially at the end of a debate when a speaker has no other arguments available. The statement is inevitably followed by: “…and it is a war crime and it denies people their human rights.” A plethora of international law violations are perpetrated by every major power in the world each day, and thus, the empty invocation of international law does nothing but reinforce our own sense of impotence and helplessness in the face of international lawlessness.

The United States, alone, and on a daily basis violates every principle of international law ever envisioned: unprovoked wars of aggression; unmanned drone attacks; tortures and renditions; assassinations of our alleged “enemies”; sales of nuclear weapons; destabilization of unfriendly governments; creating the largest prison population in the world – the list is virtually endless.

So what? Why does it matter that the United States violates treaties, and occasionally does so without a shred of legal cover? Perhaps that is the realpolitik privilege of the global hegemon: to be able to sustain hypocrisy, Uncle Sam the Deadbeat has repeatedly failed to pay its aliquot share of the costs. Some impoverished states sometimes cannot pay their just debts; the United States can pay, but sometimes just decides not to. 69 vol.37:1 winter 2013 asserting that its unique international responsibilities and its “exceptional” position in the world enable the United States explicitly to welch on its debts, fudge on its obligations, and adopt a “do as we say, not as we do” approach with other countries. However, there is a cost when the world’s strongest state behaves this way. One potential danger is that other countries may mimic this disregard for legal commitments and justify their own cavalier attitudes toward international law by citing U.S. precedents. Reciprocity and mutuality are fundamental tenets of international practice; it is foolhardy to suppose that other parties will indefinitely continue with treaty compliance if they feel that the United States is taking advantage of them by unilateral avoidance of shared legal obligations. So far, there has not been significant erosion of the treaties discussed in the three examples. !e United States and Russia will fall years short of compliance with the CWC destruction obligations, but other parties, with the notable exception of Iran, have reacted with aplomb, comfortable with the two giants’ unequivocal commitment to eventual compliance. Likewise, the VCCR is not unraveling, even if other states lament the asymmetry in consular access to detained foreigners. And while many states pay their UN dues late and build up substantial arrearages, that recalcitrance seems to stem more from penury than from a deliberate choice to follow the U.S. lead. But that persistent flouting undermines the treaties—and by extension, it jeopardizes the entire fabric of international law. Chronic noncompliance—especially ostentatious, unexcused, unjustified noncompliance—also sullies the nation’s reputation and degrades U.S. diplomats’ ability to drive other states to better conform with their obligations under the full array of treaties and other international law commitments from trade to human rights to the Law of the Sea. !e United States depends upon the international legal structure more than anyone else: Americans have the biggest interest in promoting a stable, robust, reliable system for international exchange. It is shortsighted and self-defeating to publicly and unblushingly undercut the system that offers the United States so many benefits. It is especially damaging when, following an indisputable violation, the United States acknowledges its default, participates in an international dispute resolution procedure, and INDISPUTABLE VIOLATIONS: WHAT HAPPENS WHEN THE UNITED STATES UNAMBIGUOUSLY BREACHES A TREATY? It is shortsighted and self-defeating to publicly and unblushingly undercut the system that offers the United States so many benefits. the fletcher forum of world affairs vol.37:1 winter 2013 70 apologizes—but then continues to violate the treaty. !e CWC implementation bodies, the International Court of Justice, and even the UN General Assembly and Security Council are unable to effectively do much to sanction or penalize the mighty United States, but it is still terrible for U.S. interests to disregard those mechanisms.

The United States enters into more than two-hundred treaties each year on a range of international issues, including peace, defense, human rights, and the environment. Despite this seemingly impressive figure, the United States constantly fails to sign or ratify treaties the rest of the world supports. It has failed to ratify treaties that tackle biodiversity and greenhouse gas emissions, protect the rights of children and women, and govern international waters. For a country frequently looked to as a global leader, the United States has consistently failed to step up in international partnerships. In fact, the United States has one of the worst records of any country in ratifying human rights and environmental treaties. Why hasn’t the United States stepped up to the plate? According to scholars and policymakers, one major reason is the fear of treaties infringing on national sovereignty. The United States shuns treaties that appear to subordinate its governing authority to that of an international body like the United Nations. The United States consistently prioritizes its perceived national interests over international cooperation, opting not to ratify to protect the rights of U.S. businesses or safeguard the government’s freedom to act on national security. Politics also poses a significant barrier to ratification. While presidents can sign treaties, ratification requires the approval of two-thirds of the Senate. Oftentimes, the power of special interest groups and the desire of politicians to maintain party power, on top of existing concerns of sovereignty, almost assures U.S. opposition to treaty ratification.

One of the principal criticisms made of the TRIPS agreement is that it offers an inappropriate uniform standard across a diverse range of states. Developed countries generally already possess suitable levels of IPR protection, and are home to the overwhelming majority of IP rights-holders that stand to benefit from increased protection (Chang, 2001: 23). Most developing countries, on the other hand, may incur significant costs from raising domestic standards to the required level – taking scarce resources away from other crucial sectors – and from the increased payments to be made to developed world rights-holders. A 2001 World Bank report suggested that in the short term TRIPS effectively constitutes an annual $20 billion transfer of wealth from technology-importing developing countries to technology-exporting developed countries (cited in Dutfield & Suthersanen, 2004). Similarly, Philip McCalman (2005) estimates that the beneficiaries of TRIPS are just a handful of developed countries: primarily the USA and various Western European states. Countries from India to Brazil – and even South Korea – meanwhile suffer through their reliance on technology imports. While most countries could still benefit in the long-term, McCalman argues that the advantages will nonetheless be distributed overwhelmingly amongst the leading developed countries. The Commission on Intellectual Property Rights also arrived at similar conclusions in its 2002 report on IPRs and development – assessing the argument that a stronger IPR regime would offset short-term implementation costs over the long-term, they concluded that: “…for most developing countries with weak technological capacity, the evidence on trade, foreign investment, and growth suggests IP protection will have little impact. Nor is it likely that the benefits of IP protection will outweigh the costs in the foreseeable future. For more technologically advanced developing countries, the balance is finer. Dynamic gains may be achieved through IP protection, but at cost to other industries and consumers.” (CIPR, 2002a: 12) The Commission emphasised that developing countries do require different IP strategies as depending on their level of development. Contrary to the claims of TRIPS advocates, “rapid growth is more often associated with weaker IP protection” and does not start to become important until a country is well into upper-middle income category (CIPR, 2002b:22). So, while the WTO may claim to take developing countries needs into account, its emphasis on the need for a single high standard of IPRs appears to run contrary to the historical evidence. Indeed, Ha-Joon Chang observes of Europe and the USA that they themselves were “still routinely violating the IPRs of other countries’ citizens well into the twentieth century” (2001: 10). The flexible use of IP regimes to further economic interests was also successfully adopted by East Asian states such as Korea and Taiwan until very recently, where imitation and reverse-engineering were all considered important methods for developing technological and innovative capacity (CIPR, 2002b: 19-20). Strong IPR protection therefore appears to be a consequence, rather than a cause, of economic development. The potential social cost of TRIPS for poorer countries has meanwhile been particularly evident over the issue of access to medicines, most notably with regard to antiretroviral drugs (Lanoszka, 2003). Before TRIPS, many countries either did not patent medicines or provided less than the robust 20-year protection subsequently introduced. Contemporary TRIPS rules, however, drive up costs to unaffordable levels by enabling monopoly pricing and excluding cheaper ‘generic’ alternatives. In 2001, by way of example, a group of 39 pharmaceutical companies took the South African government to court to prevent their use of compulsory licensing of generics, although intense public pressure did eventually force them to abandon the case (Sell & Prakash, 2004). However, the incident showed how multinational corporations attempt to use TRIPS to pursue private gain at clear cost to the public good[iii]. While some flexibilities in interpreting the agreement in light of public health concerns have since been established, as mentioned above, they often remain unused owing to cost, complexity, and the threat of trade ‘retaliation’ (O’Farrell, 2008). The few allowances that are granted to developing countries in the TRIPS agreement can therefore be seen as insufficient, and the numerous limitations far too restrictive. As Constantine Michalopoulos (2003) notes, TRIPS does not actually offer the same range of ‘special and differential treatment’ (SDT) as other WTO agreements. Once the transition periods have expired, developing countries must implement the same rules on scope and duration of protection – regardless of circumstances – as the most advanced developed countries[iv]. Any form of permanent SDT is not an option: LDCs can no longer exempt sectors from protection, or reduce patent duration, as a means of addressing social or economic concerns. The flexibilities within the agreement, as seen above, therefore offer only limited room for manoeuvre. Robert Wade (2003) suggests that as a result this constitutes a distinct ‘shrinking of the development space’: a reduction in states’ policy-making autonomy that denies them the paths to development that were taken by others before them. Furthermore, the agreement is “vague at points where vagueness benefits the developed countries, and precise at points where precision works against developing countries” (Wade, 2003: 630). The obligations of developing countries and the rights of developed are both enforceable to a far greater extent than the rights of the developing and the obligations of the developed. There is, for example, despite the clearly stated objective of Article 66.2 regarding technology transfer, little evidence of a sustained effort by developed states to honour such commitments (Moon, 2008). Conclusion The legitimacy and effectiveness of the TRIPS agreement is clearly vulnerable to numerous criticisms, particularly so with regard to developing countries. It is noteworthy that even prominent free trade advocates such as Martin Wolf (2005: 217) criticise the ‘hypocrisy’ of TRIPS, seeing it as a rent extraction device for many developing countries, with potentially devastating effects on education, public health, and economic development. Even within those countries who appear to gain most from the agreement, the benefits may only accrue to particular sections of society, so that “the real winners from TRIPS are not advanced countries, but rather the large corporations that pressed for its adoption” (Archibugi & Filippetti, 2010: 144). TRIPS has also not provided a solution to policy-makers’ concerns, as trade balances have continued to erode, while the recent emphasis on private rights may even serve to inhibit innovation and the spread of knowledge in developed countries in the long term (Hesse, 2002). While Archibugi & Filippetti (2010) caution against attributing too much importance to TRIPS, it is apparent that the agreement does not function as advertised. From a global perspective, it seems clear that adopting a ‘one-size-fits-all’ approach to IPRs is entirely inappropriate. A tiered system, offering more substantive special and differential treatment according to countries’ developmental needs, would have been more suitable. However, it remains to be seen whether major reform of the agreement is likely, given that TRIPS is now firmly established within the WTO system.

Neha Gupt 23 , [Neha Gupt is a writer for the Peter A. Allard School of Law," The Good, The Bad, and The Ugly of IP Law: the TRIPS Agreement and the COVID-19 Vaccine," The University of British Columbia, , 12/7/23] Cogito

The Bad. The most salient critique of the TRIPS agreement has been the prioritization of the interests of developed states and transnational corporations over the interests of developing nations (Defossexz, 2017). While the TRIPS Agreement may be heralded as a protector of innovation and creativity, in developing countries the same does not hold true. Instead, in developing countries, the TRIPS Agreement has been a means for companies to encroach on individuals’ basic right to health (Sekalala et al., 2021). Pharmaceutical companies have been able to excuse themselves from sharing life-saving medical information, citing the protections afforded to them by the TRIPS Agreement (Sekalala et al., 2021; Sirleaf, 2022). Therefore, when a credible vaccine for COVID-19 had been created, rather than it being distributed globally to prevent the spread, pharmaceutical companies refused to give up their patents under the TRIPS Agreement (Sekalala et al., 2021). The Ugly. On an international front, one of the major exacerbating forces of the COVID-19 pandemic was the lack of accessibility and transparency regarding the vaccine, largely due to the TRIPS Agreement (Sirleaf, 2021). Thus, at the height of the pandemic, as pharmaceutical companies raced to develop a cure to the virus, the agreement did what it always set out to do – protect innovation and stimulate trade (Sirleaf, 2021). However, in doing so, the agreement also led to the uneven distribution of the vaccine in developing countries, leading to what some academics refer to as the “vaccine apartheid” (Sirleaf, 2021). This geographically-driven gatekeeping of the vaccine led to pharmaceutical companies prioritizing countries and people based on wealth, leading to a self-created global supply crisis of the vaccine (Sirleaf, 2021). While Canada had enough vaccines to immunize all of their citizens 10 times, those in the Global South were still fighting for access to these preventative measures (Sirleaf, 2022). In October 2020, India and South Africa suggested a waiver of the TRIPS Agreement until the vaccine was available globally and a majority of the population developed immunity (Sirleaf, 2022). Unfortunately, it was not until 2022 that the WTO finally decided to waive the TRIPS Agreement, but added a stipulation that essentially rendered their decision useless (Sirleaf, 2022). The stipulation proposed that developing countries would have access to vaccine patents, but countries with the capacity to manufacture the vaccine were encouraged to disregard the waiver (Sirleaf, 2022).. Hence, this stipulation essentially ignored the fact that these countries needed access to patents before they could even begin manufacturing anything (Sirleaf, 2022). Although the World Health Organization did try to intervene and create COVAX, a global vaccine-sharing enterprise, the damage had been done (Sirleaf, 2021). By prioritizing profits over human rights and manipulating intellectual property law, a two-week lockdown turned into a three-year and counting debacle.

Whenever a lawyer or historian describes how a particular action “violates international law” many people stop listening or reading further. It is a bit alienating to hear the words “this action constitutes a violation of international law” time and time again – and especially at the end of a debate when a speaker has no other arguments available. The statement is inevitably followed by: “…and it is a war crime and it denies people their human rights.” A plethora of international law violations are perpetrated by every major power in the world each day, and thus, the empty invocation of international law does nothing but reinforce our own sense of impotence and helplessness in the face of international lawlessness. The United States, alone, and on a daily basis violates every principle of international law ever envisioned: unprovoked wars of aggression; unmanned drone attacks; tortures and renditions; assassinations of our alleged “enemies”; sales of nuclear weapons; destabilization of unfriendly governments; creating the largest prison population in the world – the list is virtually endless. Obviously one would wish that there existed a body of international law that could put an end to these abuses, but such laws exist in theory, not in practice. Each time a legal scholar points out the particular treaties being ignored by the superpowers (and everyone else) the only appropriate response is “so what!” or “they always say that.” If there is no enforcement mechanism to prevent the violations, and no military force with the power to intervene on behalf of those victimized by the violations, what possible good does it do to invoke principles of “truth and justice” that border on fantasy? The assumption is that by invoking human rights principles, legal scholars hope to reinforce the importance of and need for such a body of law. Yet, in reality, the invocation means nothing at the present time, and goes nowhere. In the real world, it would be nice to focus on suggestions that are enforceable, and have some potential to prevent the atrocities taking place around the globe. Scholars who invoke international law principles would do well to add to their analysis, some form of action or conduct at the present time that might prevent such violations from happening. Alternatively, praying for rain sounds as effective and rational as citing international legal principles to a lawless president, and his ruthless military.

Many norms of international law, especially international human rights law, are widely violated. The international legal system as a whole may suffer as result. International human rights law has changed international law. The two primary sources of international legal obligations—treaties and custom—have become more expansive and looser so as to bring more human rights norms into the ambit of international law, despite wide-spread non-compliance with those norms. In one sense, the success of the effort is clear: international law now regulates a vast array of human-rights-related conduct. Whether the expansion is an effective way to promote human rights is widely-debated. The broader, unacknowledged problem, however, is the potential effect of the expansion on international law as a whole, as I discuss in detail here. Today, international law includes a broad range of human rights norms which are routinely violated, from the U.N. reporting requirements to gross violations of human dignity. Wide-spread violations of some legal norms may, in turn, make it harder to enforce others. As a (very) imperfect analogy, consider the “broken windows” theory of crime prevention: widespread violations of human rights law may be a symbol of unaccountability, a signal that no one cares about violations of international law and that no one is in charge. Accountability is a fundamental concern of public international law because the system lacks a centralized enforcement mechanism. Whatever the merits of the “broken windows” argument in the context of domestic law enforcement, behavior which signals a lack of accountability may be especially damaging to international law writ large. Theoretical literature on compliance with international law suggests that non-compliance in some areas makes other norms of international law harder to enforce. Work on rational choice posits, for example, that states comply with international law in part to protect their reputations. If states as a whole tend to expect non-compliance from each other, the costs of entering into treaties or developing norms of customary international law become higher for all states. A baseline reputation of non-compliance among states generally harms interstate cooperation because it means that states will have to do more in a treaty agreement to generate trustworthy commitments (such as monitoring non-compliance), and because it makes some agreements not worth the time or effort. To be sure, these effects depend upon states having reputations for compliance which are not entirely issue-specific or compartmentalized, a plausible assumption for reasons explained here (pages 103-06). Other theories of compliance with international law, including constructivism and organizational sociology, also suggest that widespread non-compliance with human rights will make the rest of international law less effective. For example, constructivists Jutta Brunnée and Stephen Toope argue that international legal obligations arise from communities of practice which have shared understandings and which generate norms with specific characteristics of legality. Lack of congruence between a norm and behavior impedes the development of a community of practice. They reason in the context of torture (page 232) that “a widespread failure to uphold the law as formally enunciated leads to a sense of hypocrisy which undermines fidelity to law.” Research from domestic law and social psychology, including the work of Tom Tyler, suggests that widespread lack of faith in government and its ability to solve problems undermines peoples’ sense of their own obligation to follow the law.

A system of laws and guidelines known as international law regulates interactions between governments and other international entities. It consists of treaties, other agreements, and customary international law. It has played a crucial role in advancing global peace, justice, and human rights. Nevertheless, despite its successes, the international legal system is currently dealing with a number of issues that threaten its efficacy and applicability in the modern world. This essay seeks to identify, examine, and offer potential solutions for these issues. Lack of Enforcement tools: The absence of efficient enforcement tools is one of international law’s main shortcomings. Despite governments having a duty to uphold international law, there is no international body in place to do so. As a result, governments can now violate international law without repercussions, which undermines the international legal system’s authority and credibility. A state’s agreement is required for the International Court of Justice (ICJ) to exercise its limited authority. Although the Rome Statute that founded the International Criminal Court (ICC) was not approved by many strong states, the court’s authority to prosecute people for crimes against humanity is limited. If international law is to be effective in advancing justice, peace, and human rights, it must address the significant problem of the absence of effective enforcement mechanisms. Lack of a worldwide Regulatory system: A further shortcoming of international law is the absence of a worldwide regulatory system. The world now lacks a comprehensive global regulatory framework that can solve all the problems it is currently facing, despite the fact that there are several international accords on particular subjects like human rights, trade, and the environment. This has resulted in a situation where various international regimes overlap and clash, causing confusion and inefficiency. Conflicts arise between organizations like the World Trade Organisation (WTO) and the United Nations Framework Convention on Climate Change (UNFCCC) because they have different goals and guiding principles. If international law is to effectively promote global governance, the lack of a worldwide regulatory framework represents a key problem that must be overcome. Limited Involvement of Developing Nations: The limited involvement of developing nations in the international legal order is another shortcoming of international law. Many developing nations are unable to effectively participate in the development and application of international law due to a lack of resources and capacity, which frequently results in the disregard of their interests and concerns. Due to this, international law is now seen as being unjustifiably biased in favor of industrialized nations, which undermines both its legitimacy and efficacy. If the international legal order is to be successful in advancing global justice, it is imperative that the issue of poor countries’ lack of participation be resolved. The issue with state sovereignty is yet another serious flaw in international law. The idea of sovereignty holds that each state should be free to run its own affairs without external influence. This idea, which is a cornerstone of international law, is stated in the UN Charter. However, the idea of sovereignty can also act as a roadblock to successful international cooperation. States may put their individual interests ahead of the common interests of the international community, and they may fight efforts to impose international norms and standards on them. As a result, international law can only be effective if governments freely abide by its rules. International law can be ineffectual when states refuse to follow its requirements. For instance, the jurisdiction of the International Criminal Court is restricted to matters in which governments have granted it legitimacy; as a result, it is unable to bring prosecutions against citizens of non-party states. The Influence of Power Politics Power politics is yet another element that compromises the efficacy of international law. Powerful nations may use influence to reshape international laws and regulations to serve their own interests, frequently at the expense of smaller, weaker nations. This can result in a situation where international law favors strong states and does not sufficiently safeguard the rights and interests of lesser states. For instance, the US has come under fire for allegedly abusing its power to favorably alter international trade regulations at the expense of underdeveloped nations. Powerful powers may also try to thwart efforts to hold them accountable for crimes against humanity or other international crimes by wielding their influence.

As does its federal counterpart, Mil. R. Evid. 201 authorizes judicial notice of "adjudicative facts" which are defined as "simply the facts of the particular case." See Drafters' [**9] Analysis at A22-4. Domestic law can constitute an adjudicative fact and be eligible for judicial notice if it is a "fact that is of consequence to the determination" of the case.3

[BEGIN FOOTNOTE 3] "Domestic law" includes treaties of the United States; executive agreements between the United States and any State, foreign country or international organization; the laws and regulations of the United States (which includes regulations of the armed forces) or of a State; international law; and the common law. See Drafters' Analysis, Drafter's Analysis, Manual for Courts-Martial, United States, A22-5 (2008 ed.) (hereinafter "Drafters' Analysis"). See United States v. Ayers, 54 M.J. 85, 90 (C.A.A.F. 2000) (a general regulation is a proper subject of judicial notice in a case charging a member with a violation of such a regulation). United States v. Commander, 39 M.J. 972, 977 (A.F.C.M.R. 1994) (panel instructed the military judge had taken judicial notice that anabolic steroids are a Schedule III controlled substance under the Controlled Substances Act of 1970). [END FOOTNOTE 3]

A week ago, Smith & Hopen posted an article highlighting the importance of the U.S. patent system to the prosperity of our economy. Yesterday, the Global Innovation Policy Center (GIPC) released its 2020 International IP Index. The report highlights the continued global dominance of the U.S. intellectual property system, which ranks as the number one in the world. The IP index also shows that our patent system is the second strongest in the world, only behind Singapore. Although Singapore may have a more robust patent infrastructure, its overall size is dwarfed in comparison to the U.S., so the head-to-head comparison is not particularly fair. The U.S. patent system is the cornerstone of a healthy and prosperous American economy. The 2020 International IP Index underscores our position as the global intellectual property leader. The IP Index also shows that other countries are also investing heavily in bringing their national patent systems up to the standards the U.S. has established. Strong international patent infrastructure is excellent for the American economy and allows American innovators to meaningfully secure and enforce their patent rights abroad.

It is increasingly impossible to analyze intellectual property law and policy without reference to international lawmaking. That is not, however, merely because several recent domestic reforms have been prompted by international developments.1 Indeed, because of significant U.S. influence in the formation of contemporary intellectual property treaties, U.S. law has undergone less change than most in order to comply with newly-assumed international obligations. Nor is it simply because, in an era of global trade and technological advances, a state is unable effectively to regulate economic activity on its own. Rather, the need for a broader awareness flows most directly from the integration of the international and domestic lawmaking processes. Consider this historical example. As nations met in Berlin in 1908 to revise the Berne Convention, the United States received an invitation to attend with “full freedom of action.”2 Instead, the Register of Copyrights attended only as an observer.3 The reason might now seem und uly quaint. Thorvald Solberg, the Register of Copyrights explained to the Conference that the United States found it impracticable to send a delegate authorized to commit it to actual adhesion to the Berne Convention since some of the questions to be discussed there were pending before the Congress and premature action at the Convention might embarrass the legislative branch of the Government.4 Today, in contrast, there is a conscious blending of domestic and international lawmaking. International lawmaking demands attention to Washington; and domestic lawmaking cannot be conducted without regard for what is going on in Brussels, Geneva, Tokyo, and elsewhere. Indeed, in some areas of intellectual property, we may be moving toward a single lawmaking process that embodies a series of complex relations among national, regional and global institutions and laws. Within the United States, this biplay between national and international fora – in particular, between executive branch activity at the international level, and legislative activity in Congress – has been treated by some with a certain suspicion.5 This interaction is, however, essential in a global age. And it should not be disconcerting. The Constitution sets out a process for concluding and ratifying treaties,6 and a separate process for enacting legislation.7 Each mechanism has its own limits. It would be somewhat surprising if each branch of government did not use the leverage with which it is endowed by the constitutional scheme. In any event, this blending or integration of lawmaking is a political reality of which we must take account in our assessment of how intellectual property law is made. This Essay addresses the operation of this integrated process in the fields of design and trade dress protection. I will focus on two primary issues, using examples drawn from recent developments in those fields. First, I will discuss the characteristics of what has arguably been the predominant form of international lawmaking in recent years, namely the process of harmonization; and, second, I will identify some current design or trade dress protection issues that may soon be part of this complex lawmaking process.

Even worse, the lack of accountability and the political payoffs of a successful international agreement may tempt politicians to engage in what I have called ‘backdoor lawmaking’ – ‘a process of outsourcing the legislative process to an international forum of unelected representatives in an effort to create laws that the domestic legislature would not have otherwise enacted’.57 Through this backdoor process, the administration can present to the legislature a fait accompli in an attempt to make an end run around the domestic deliberative process. The new-found international obligation will greatly increase the likelihood of having the laws enacted, even though those laws would not have been enacted based on evaluation of local needs alone. After all, when the country’s international reputation is on the line, the stakes in not adopting laws to implement the agreement are much higher.

C. WHAT IS TO BE DONE? So how should Sovereigntists and modern Internationalists respond to the threat of extraterritoriality? A complete description of how to reclaim international law is beyond the scope of this article. But some modest observations are appropriate. Good reasons exist to embrace traditional international law. State-centered international law, tempered by strong human rights enforcement, is designed to prevent jealousies between states and excessive nationalism. Indeed, the widely held view of international law, until recently, was one of a system that would “triumph over narrow nationalism and, in so doing, . . . promote the peaceful settlement of disputes and a common, cooperative approach to the resolution of global issues.”269 And it has worked reasonably well. Under classic international law doctrine, respect for territorial integrity through nonintervention in other states’ domestic affairs promoted peace and stability.270 This is the core of the concept of sovereign equality and the ban on nonintervention.271 But extraterritorial application of law threatens to compromise that very principle,272 and with it the stability the world has seen over the past fifty years. The United States should encourage the development of international norms and procedures, because by doing so it protects its position in the world, and it avoids the difficulties with extraterritoriality. States enter into multilateral agreements specifically to obtain political, military, and economic security. Once created, multilateral laws and their institutions are less vulnerable to later shifts in power—thus protecting the interests of hegemons, like the United States, and projecting their influence even after hegemony has ended.273 Nico Krisch has described it well, explaining how international law can lead to stability and the embedding of the values of dominant states: [I]nternational law is also extremely useful as an instrument of stabilization: it allows dominant states to project their visions of world order into the future, since once they are transformed into law, the backward-looking character of international law makes them reference points for future policies. And oftentimes, concepts strongly rooted in international legal norms create a new normality: over time, they modify the conceptions of legitimacy of international society, which makes later changes all the more difficult.274 Some evidence also exists that, unlike extraterritorial laws, international lawmaking is democracy-enhancing,275 and particularly useful to aid other states transition to democratic government.276 A common response is to agree with these benefits, but to suggest that extraterritorial national laws are a necessary impetus to obtain international agreement.277 The idea is enticing and appears logical: conflict between states will spur negotiations and provide incentives to cooperate multilaterally.278 But ultimately, the idea flounders and does not lead to the cooperation expected. First, little empirical support exists to suggest that extraterritorial laws lead to greater cooperation.279 The United States, for example, began applying its antitrust laws extraterritorially in the 1940s.280 Yet not until 1999 did the United States enter its first bilateral antitrust agreement.281 And despite fierce foreign opposition to extraterritorial U.S. antitrust laws and the ensuing friction—which, in theory, should have spurred international lawmaking—cooperation in the form of a multilateral competition treaty seems still far out of reach.282 Second, historically it has been the United States—not other countries—that has needed encouragement to enter into multilateral treaties, even those that serve long term American interests.283 Extraterritorial American laws have not only taken the pressure off the United States to join multilateral agreements, but have provided it an incentive to derail them.284 More importantly, those who argue for extraterritorial laws as a means of advancing international cooperation again assume that the extraterritorial laws will be only American laws (i.e. that the pressure will only be placed on other countries). But in an age of global extraterritoriality, it is far from clear why the United States should welcome pressure, through extraterritorial laws, compelling it to negotiate international agreements from a position of weakness rather than power.285 Using extraterritorial laws then as a way to achieve international agreement seems a particularly misguided strategy. To be sure, there may be short-term costs of turning to international treaties and multilateral agreements as a way to solve transboundary challenges. In reclaiming international law—embracing multilateralism—the United States would need to give up its claims to American exceptionalism. As a nation, we would have to be content to find that at times our international obligations would run counter to immediate American interest. But we could also be comforted by the knowledge that overall, in the longer term, our interests would be protected to a greater extent. Indeed, in the past, “as long as [the United States has] limited itself to the promotion of its own interests (which is the essence of international negotiations), the United States has experienced an appreciable success in shaping international law through treaties.”286 Only when it “pretends to be entitled to some kind of exceptional treatment” has the United States met with opposition and become isolated.287 Before concluding, two things that this article does not advocate are worth emphasizing. First, the United States has the right—indeed, the duty—to refuse to sign and ratify an international treaty with which it disagrees. But the refusal should come from disagreement with the details of the treaty itself, not from a generalized philosophical objection to international law solely because it is international. Nor should the objection to treaties come from a perceived moral imperative to vindicate U.S. democratic sovereignty, given the democratic problems that the extraterritorial alternative implicates. Neither should international treaties be set aside merely because they lack the expediency of domestic actions. Difficult compromises and hard work are to be expected and are beneficial to ensure good law. It is much better for the United States to take these steps now, while it remains in a position of global power, than to wait until its power ends, and the ability to negotiate beneficial, albeit self-serving, treaties is circumscribed. Second, this article does not criticize those activists who bring extraterritorial claims. They are acting as lawyers for their clients. They have not been hired to worry over the longterm policy implications of extraterritorial lawsuits. But academics and policymakers have no such excuse. They should be much more sensitive to the long-term implications of turning toward extraterritorial domestic law. For the activists, in the current atmosphere where international law is particularly weak, litigation may make sense. Certainly, litigation may provide interim relief until more comprehensive solutions are found.288 And private party litigation can serve the important function of focusing attention upon the problem. In fact, the public attention generated may be the only real benefit of these kind of transnational extraterritorial suits.289 But in the long run, extraterritoriality is not a sustainable way to solve global challenges.

What do these insights from public international law mean for IP treaties generally, and those incorporated into the WTO legal order in particular? In the words of the ILC, there is ‘little reason of principle’31 to depart from the notion described above when applying and interpreting rules of TRIPS and the IP treaties it incorporates. While WTO dispute settlement is no forum of universal jurisdiction, the Appellate Body (AB) has, already in its very first decision, confirmed that WTO law does not operate in ‘clinical isolation’32 from other rules of international law. When Panels and the AB consider claims under the covered agreements (rather than based on non-WTO rules), they must construe the rights and obligations flowing from WTO rules ‘within the overall context of general international law’.33 In several decisions, WTO adjudicators have accepted and applied this approach.34 The same must be true for other WIPO-administered treaties, and indeed the (internal and external) conduct of international organizations dealing with IP, such as the European Patent Office (EPO). While one can for example point to the WIPO Global Challenges division as evidence of engagement with the outer (international law) environment,35 such evidence is not required for relying on custom and other generally applicable rules of international law. As the default rule is their continued relevance, one would need to show that for example by agreeing to the Patent Co-operation Treaty (PCT) or by setting up the EPO, states wanted to create self-contained regimes.

From this starting point of continued relevance of custom and general (international law) principles, research approaches can zoom in to address interesting scenarios where public international law might offer fresh perspectives and additional insights into legal questions arising in international IP treaties and institutions. For example, customary international law recognizes the eminent domain of the state as the main entity tasked to regulate in the public interest within its jurisdiction under the so-called ‘right to regulate’ or ‘police powers’ doctrine.36 While the exact contours of this principle remain somewhat ambiguous, the basic idea is that states generally retain the right to protect public interests in a non-discriminatory, bona fide way.37 As a basic expression of state sovereignty, this principle does not need to be ‘imported’ into IP treaties38—it predates their existence and merely requires proper recognition in the increasingly dense system of treaty obligations to protect and enforce IP rights in a particular way. International investment law has acknowledged the right to regulate in an increasing number of ISDS decisions—not least in the PMI v Uruguay Award regarding tobacco packaging where the investment allegedly expropriated were trademarks registered in Uruguay.39 One might hence ask where and how TRIPS (or other IP treaties) address this right, and whether there is evidence that states intended the respective treaty rules as exhaustive formulation of this key principle? If such evidence is missing, there is in principle room to rely on the right to regulate under customary international law.

These attacks on international law are sometimes dismissed as isolated events, disconnected acts of animus toward specific treaties or institutions. Nothing could be further from the truth. Behind these individual attacks lies a comprehensive vision of the rule of law in world affairs, one that treats international law not as a means of achieving American objectives but as an unnecessary and unjustified limitation on the exercise of American power. Consider the following statement from a 2005 Pentagon National Defense Strategy: “Our strength as a nation state will continue to be challenged by those who employ a strategy of the weak using international fora, judicial processes, and terrorism.” International law in this view is not simply a worthless diversion. It is a real and serious threat to US national interests. Those who hold this extreme view have successfully guided foreign policy to break with the country’s long history of using international law to achieve American values and interests.

As the 2008 election looms, it is time to challenge this dangerous vision and reaffirm and rebuild America’s historical commitment to international law. No longer can critics of the Bush Administration merely show where it has gone wrong. They need to articulate a vision of international law and its place in US foreign policy that is grounded in our common interests and values. In laying out this vision, the point to emphasize is not that a renewed commitment to international law will help us win back the respect of the rest of the world (though it will) or even that the United States, as the most powerful country in the world, has a special responsibility to support international legal institutions (though it does). Rather, the case for international law as a cornerstone of American foreign policy should begin with a more basic message: only through a robust engagement with international law can the United States promote its national interests in the modern, globalized world.

Significantly, these two narratives of historical development of international law are not mutually exclusive. First, certain developments can be understood as clean breaks from the past, whereas others are the product of a long-term process. Second, identifying historical trajectories depends on the focal length of the historical lenses used: What is viewed as a major shift in direction at the time in which events take place, might be regarded decades or centuries later as a minor course correction, a short period of instability, or a mere point on a pattern showing the overall trajectory. And third, the two narratives may merge to generate processes of change, accelerating in particular moments in time due to ‘tipping points’ generated by certain dramatic events.5 Indeed, it would appear that certain important developments in international law can be described as part of long-running trends punctured by sudden fluctuations correlating to dramatic events. For example, the evolution of IHL norms governing non-international armed conflicts can be narrated as stemming from a gradual process of restraining violence in and around the battlefield that started picking up momentum in the mid- 19th century, with certain regulatory peaks occurring after and in connection with major international crises such as World War Two, Vietnam and the Global War on Terror (e.g., Common article 3 in 1949, the 1977 Additional Protocols, and the development of laws governing transnational or asymmetric armed conflicts in the 2000s).

The COVID-19 Pandemic as the Harbinger of a Constitutional Moment

Nuclear terrorism could even spark full-scale nuclear war between states. Such war could involve the entire spectrum of nuclear conflict possibilities, ranging from a. nuclear attack upon a nonnuclear state to systemwide nuclear war. How might such far-reaching consequences of nuclear terrorism come about? Perhaps the most likely way would involve a terrorist nuclear assault against a state by terrorists "hosted" in another state. For example, consider the following scenario:

Early in the 1980s, Israel and her Arab state neighbors finally stand ready to conclude a comprehensive, multilateral peace settlement. With a bilateral treaty between Israel and Egypt already several years old, only the interests of the Palestinians—as defined by the PLO— seem to have been left out. On the eve of the proposed signing of the peace agreement, half a dozen crude nuclear explosives in the one kiloton range detonate in as many Israeli cities. Public grief in Israel over the many thousand dead and maimed is matched only by the outcry for revenge. In response to the public mood, the government of Israel initiates selected strikes against terrorist strongholds in Lebanon, whereupon the Lebanese government and its allies retaliate against Israel. Before long, the entire region is ablaze, conflict has escalated to nuclear forms, and all countries in the area have suffered unprecedented destruction.

Global governance is necessary because humanity increasingly faces both problems and opportunities that are global in scale. Today, transnational problems such as violence and pandemics routinely reach across borders, affecting us all. At the same time, the increasingly integrated global system has also laid the necessary foundations for peace and spectacular prosperity. Effective global governance will allow us to end armed conflict, deal with new and emerging problems such as technological risks and automation, and to achieve levels of prosperity and progress never before seen.

The most important challenge for humanity to overcome is that of existential risks. One way to look at the danger of an existential risk is to quantify the level of global coordination needed to deal with it. While best-shot risks, at one end of the spectrum only require that a single nation, organization or even individual (i.e., superhero) has the means and the will to save everyone, weakest-link risks, at the other end of the spectrum, are dangers that might require literally every country to take appropriate action to prevent catastrophe, with no room for failure.2 3

The connections between development and peace are firmly supported by social science research. All the standard indicators of economic development, including per capita income, economic growth rates, levels of trade and investment, and degree of market openness, are significantly correlated with peace. Virtually every study on the causes of war finds a strong connection between low income and the likelihood of armed conflict. Economist Edward Miguel describes this link as “one of the most robust empirical relationships in the economic literature.” Irrespective of all other variables and indicators, poverty as measured by low income bears a strong and statistically significant relationship to increased risk of civil conflict.

No one has made this point more convincingly over the years than Paul Collier. He and his colleagues have shown that civil conflict is heavily concentrated in the poorest countries. The risk of civil war is strongly associated with joblessness, poverty and a general lack of development. They famously , “The key root cause of conflict is the failure of economic development.” They also make the reverse point. Raising economic growth rates and levels of per capita income may be “the single most important step that can be taken” to reduce the likelihood of armed conflict.

This paper argues that the changing national security landscape requires a comprehensive, strategic approach toward fragile states, defined as those at the highest risk of coups, conflicts, or mass atrocities. Threats to American national security including terrorism, pandemics, and the spread of violence and conflict emanate increasingly from fragile states. State fragility has also emerged as a leading impediment to human development, trapping many of the world’s poorest individuals and states in a cycle of poverty and violence. In the absence of a more proactive strategy towards fragile states, a growing portion of U.S. assistance and military resources are now spent responding to conflicts and atrocities after they occur – an approach that is both costly and ineffective.

In the wake of 9/11, the United States significantly expanded its focus on the links between state weakness in the developing world and threats to U.S. security. The 2002 National Security Strategy highlighted that “weak states, like Afghanistan, can pose as great a danger to our national interests as strong states.” But while the U.S. government developed new strategies to aid poor but well-governed states and to coordinate reconstruction efforts in the wake of conflicts, it has yet to develop and implement an effective framework for responding to fragile countries on the brink of crises. This represents a significant gap and misalignment of U.S. resources against 21st century challenges.