International Law Making a Difference

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    • 00:11

      Hello.My name is Karen Alter.I'm a professor in political science and lawat Northwestern University.I teach courses at the graduate and undergraduate levelin international law, international relations,international organizations, and ethicsin international affairs.Today, I want to talk to you about international lawin action.And I'm going to draw some cases from my recently published

    • 00:32

      book, The New Terrain of International Law.So, my research influences how and when international courtsinfluence international relations and domestic policy.And I've conducted this research in Europeand Latin America and Africa.And today I'm going to tell you about four of the case studies.The case studies are going to show international actors,firms, and private litigants harnessing

    • 00:52

      the power of international law, and litigantsin international courts confronting powerful actors.And in response, states are actuallygoing to change their behavior.These cases occurred in Africa, in Latin America,and in the United States.They involve human rights.They involve war crimes and economic issues,these are all of the areas in which international courtsoperate, And the variety of these cases is important to me,

    • 01:15

      because it shows that international lawand international courts can have an influence evenin inhospitable regions.These are all success stories.In all cases, international courtspushed governments towards greater respectfor international law.But success is a relative concept,as you're going to see.And I'm going to speak to some of the normative ambiguitiesin the cases.

    • 01:36

      So, I'm going to tell you four success stories.The first one involves modern-day slavery.The second one involves intellectual property patentlaw.The third involves an American policy for export subsidies.And the fourth is a war crimes case against a sittinghead of state.And when we analyze these cases together,I want you to pay attention to whohas initiated the litigation, because that's

    • 01:58

      an important indicator of how international law is empoweringa different range of actors in international relations.And I want you to pay attention to the target governments,because the target governments include weakerand more powerful governments.And I want you to pay attention to the remedy,because winning a case, it does lead to a change in behavior.But it doesn't make the world-- it's nota magic fairy wand that you wave and then everything is fine.

    • 02:21

      And I'm going to end by telling you what these cases can tellus about the changing role of international lawand international politics today.As I said, these are cases that come from my book, The NewTerrain of International Law.The book actually is 18 case studies.Not all of the case studies are successes.And I go into much more detail and complexity,although each case study is relatively short.

    • 02:42

      The cases are much more complex and I can tell you about todayas I go very quickly through these four stories.So, let me start with the Hadijatou Manicase and the issue of modern-day slavery.This is Hadijatou Mani.The facts of this case are undisputed.She was sold for $400 when she was 12 years old.

    • 03:05

      And then in 1990, the government of Nigercreated a law that banned slavery.So, it banned slavery, but it did notcreate any laws that criminalized having slaves.It took until 2003, when there wasa new national legislation that madethe holding of slaves criminal.So, after this law was passed, this NGO,Anti-Slavery International, hired a local judge

    • 03:26

      to go from town to town and explain this law to people.This judge went to a marketplace and explainedthat slavery was now a crime in Niger,and that anyone who had slaves couldbe subject to prosecution.And someone heard this judge speak and went to him and said,I know a slave owner who treats his slaves terribly.And the judge and the mayor of the townwent to the slaveholder and said,

    • 03:47

      you're not allowed to have slaves,and you could go to jail for a long time.And the slaveholder responded by issuing a liberationcertificate, by saying, Hadijatou Maniis no longer a slave.She is free.And Hadijatou Mani's brother thentold her about this liberation certificate.And she left to start a new life.She left the slaveholder.But then the slaveholder had a change of heart.

    • 04:09

      And he started to get very vindictive.And this is how international law comes into the story.The slaveholder said, well, the minuteI liberated Hadijatou Mani, she became my wife.And she is now my fifth wife under customary law,and we've had kids together.And so she's not a slave.She's my wife.But Hadijatou Mani did not want to be his wife,

    • 04:29

      had never really married him.So she files for divorce.And the husband, in response, files for custody of the kids.Meanwhile, she has taken up with another man,and she is pregnant by this other man.So, he prosecutes her for bigamy.And because he's more powerful in this societythan is a former slave, he gets Hadijatou Manithrown in jail, along with her brother, for bigamy.

    • 04:51

      So, this is when international law enters the story.And it enters the story through this NGO called Interights,which decides that they will litigatethe case in front of the ECOWAS Community Court of Justice.ECOWAS is a regional organization in Western Africa.And it has this international courtthat has jurisdiction over human rights violations.And so Interights takes Hadijatou Mani's case

    • 05:14

      to ECOWAS, because there have alreadybeen a number of domestic legal rulings-- the rulings thathave denied her divorce, the rulings that have given custodyof her kids to the former master,and the ruling that has landed her in jail for bigamy.And Interights goes to the ECOWAS courtto find that Niger is in violation of human rights law

    • 05:36

      for not doing enough to stop slavery.So, Interights raises the case on behalfof Hadijatou Mani, who in the processis released from jail for bigamy while the case is beingheard by the ECOWAS court.The court changes the venue of the proceedingsto Niamey, which is the capital of Niger.and the outcome of the ruling is that the court

    • 05:56

      finds that Niger has not done enough to stop slavery.And it awards Hadijatou Mani 10 million CFA francs,which is about $20,000.Now, this award is a huge victory and a life changerfor Hadijatou Mani, because she'sin custody battles for her kids.And the courts want to know, can she provide for her kids?Well, with $20,000, she can provide for her kids.

    • 06:19

      So, this is a rare victory that actually gave her somethingshe really needed, which was moneyto fight the custody battle.It's changed her life.But it hasn't ended slavery in Niger,and that's because the problem of slaveryis much more intractable.So, it was a big victory for an illiterate, uneducated younggirl who brought this case.

    • 06:39

      And I put this picture up of Hadijatou Mani getting an awardfrom Hillary Clinton Michelle Obamafor her incredible courage.But it also shows that one reasonwhy she won this case is, of course, itfits very much with the political valuesof strong backers.So, I don't want to deny the power that's going on.The norms against slavery are so powerful that the governmentof Niger, when it got called in front of a court

    • 07:01

      and found to have support slavery, thatwas tremendously embarrassing.And the government wanted to showthat it was taking immediate action, whichis why the prime minister, who was in the audiencewhen the decision was read, immediately stood up and said,she will get her money.And she got her money.So, they complied entirely, because the governmentwanted to show that it respects human rights.

    • 07:23

      Why did it want to show that it respects human rights?Because it cares about its global reputation.It cares what powerful actors think.So, there's this medication called sildenafil citrate.And this medication has a patent.And patents, what they do is they

    • 07:43

      allow producers of pharmaceuticalsto have a monopoly on a new inventionfor a certain period of time.So, sildenafil citrate is actually a heart medicationto treat pulmonary arterial hypertension.What they found out during subsequent testingis that the men did not return the extra medicationafter the tests had ended.And that's because this medication had a powerful side

    • 08:05

      effect that the men really liked.And the side effect is what we nowknow as Viagra, an erectile dysfunction drug.So, this medication that was createdto treat a heart problem, and had therefore been in existencefor a very long time, and was no longerunder patent in Latin America, they nowfind a new purpose for it.And Pfizer, who produces Viagra, wants a new patent,

    • 08:28

      what we would call a second use patent.But the problem is, under Andean law,you can't get a new patent just because you finda new use for the medication.You can in the United States, but youcan't in the Andean community.So, since this drug was already a generic drug,Pfizer could not have its patent.Pfizer tried to.It asked Indecopi, which is the national intellectual property

    • 08:49

      agency in Peru, if it can have a patent.And the agency said no.So, the company needed a new strategy.So, Pfizer went to Fujimori's government.Fujimori was the then president of Peru.And they asked for a law that allowed second use patents.Everyone I spoke to about this said this to me,to use a universal signal rather than a word,

    • 09:11

      that they suspected corruption.And the government then enacted a new special decreethat says that second use patents are legal.So, now you have Pfizer, who has a second use patent, whothen brings a series of lawsuits in Peruvian courts,challenging the generic producersand saying that they can no longer market this medication

    • 09:33

      that they have been marketing.And it's an intimidation tactic with lawsuits.What are the Peruvian judges going to do,because there is this new piece of law,and there is a government backing the law.And so they're put in a difficult situation.So, the association-- ADIFAN, it'scalled-- which is a Peruvian associationfor generic pharmaceuticals, they

    • 09:54

      decided to challenge this decree as a violationof Andean community law.And they do this in the Andean courts of justice,the Andean tribunal of justice, whichis a community court for the Andean community, whichis an international, regional institution thatincludes Colombia, Ecuador, Peru and Bolivia.Long story short, the Andean courtfinds that second use patents are not

    • 10:16

      allowed under Andean law, and therefore Pfizer's new patentis invalid.Indecopi then takes this decision,even though the law on the books remains the same in Peru.It says, this patent is no longer valid.And it eliminates the patent, in which case, all of the casesthat are raised in domestic court go away.And so, in fact, there are no second use patents in Peru.And the same strategy, then, is replicated

    • 10:38

      in Bolivia and Ecuador.So, within the Andean region, the political strategyto get second use patents is undone.And in fact, no second use patentsare allowed in the Andean regions.So, that's my second story.The third story is a story of international law forcing

    • 10:59

      the United States Congress to change its tax code, whichI think is amazing, because we can barelyget our Congress to pass any legislationat this point in time.And here, we have an international actorthat gets the US Congress to actually change its tax policy.Here's a very abbreviated version of what happened.This is a fight between the United States and Europe.And the fight has to do with value added tax, which

    • 11:19

      is in Europe what they use.In Europe, they don't tax the profits of companies.Instead, they tax consumers wheneverthey purchase a product.In the United States, we tax the profit of companies.So, American producers, were saying this is not fair.We're paying the tax twice.We're paying a tax on our profits,and we're paying the tax on when it's marketed in Europe.

    • 11:39

      And so, listening to this concern of companies,the US Congress passed the special legislationthat allowed companies to define a new and special, basicallyfake, corporation, a corporation that only exported goods.And they created a separate tax ratefor the exported goods that did notapply for the goods that were produced at home.So, any profits you made on exports were not taxed.

    • 12:01

      The problem is that this is an illegal subsidy under WorldTrade Organization rules.So, the US Congress did this in the 1970s.At the time, we didn't have the World Trade Organization.We had the General Agreement on Tariffs and Trade.And it was clearly an illegal policy.And it's a very complicated story,but Europe brought the case to GATT, and the US lost.The US brought retaliatory suits that Europe lost.

    • 12:23

      And the US then said, well, we don'thave to follow this GATT decision,because it's negated by these other four decisions.So, for many years, even though wehad lost this policy that was clearly illegal,the US insisted on this export subsidy.Now comes into place the World Trade Organization in 1994.The case gets re-litigated, because we allknow the outcome of the case.

    • 12:44

      And the World Trade Organization creates a retaliatory benefitof $4 billion per year, which means that the EuropeanUnion is allowed to retaliate against American productsto the tune of $4 billion every year.This is why the US changed its policy-- because companieslike Boeing, Caterpillar, General Electricwent to Congress and said, you have to eliminate this export

    • 13:06

      subsidy.Because we're facing retaliation in Europe andit's going to harm us.And so the United States passed this wonderful law--we always like to give laws these great names--the American Jobs Creation Act of 2004.And the point of this act was basicallyto rescind this rule that violated WTO law, sothat American companies did not face $4 billion

    • 13:27

      a year of retaliation.I include this case because it's about a very powerful countrybending to international law.It's about the US Congress bending to international lawand repealing a tax law.The final case I want to tell youis a case about prosecuting heads of state.

    • 13:48

      So, there's this man named Charles Taylor.Charles Taylor was a warlord, and he was also the sittingpresident of Liberia.This case involves crimes that he did not directly commit,but that were committed by troops that hesupported in Sierra Leone.In the peace settlement in Sierra Leone,the government of Sierra Leone asked the United Nations

    • 14:08

      to create a special court for Sierra Leone.And this was created in 2000.And this court was explicitly given jurisdictionto try sitting heads of state.The court's created in 2000.And the indictment against Charles Taylor is sealed.The indictment was sealed until the opening day of peace talksin Ghana in 2003.These peace talks were not about Sierra Leone.

    • 14:28

      They were about the war in Liberia.And the special court in Sierra Leoneunseals this indictment that says that Charles Taylor isunder indictment for war crimes committed in Sierra Leone.And what this indictment means isthat during these peace talks, nobodycan promise Charles Taylor amnesty.In fact, what he gets in the peacetalks is amnesty from prosecution in Liberia.

    • 14:50

      But that's not amnesty from prosecution in Sierra Leone,because you can't give him this amnesty of prosecution,because there is an international tribunal thathas a legitimate arrest warrant for Charles Taylor.So, what happens in the peace negotiations is,Charles Taylor agrees to leave office.And there's a deal worked out by this president of Nigeria,

    • 15:12

      President Obasanjo, who agrees to allow Charles Taylor to haveasylum inside of Nigeria.And so Taylor goes to Nigeria.And now we know that the official dealwas that he could stay in Nigeria until the pointthat the government of Liberia requested his extradition.So, there's a special court, a UN court,

    • 15:33

      that is prosecuting crimes in Sierra Leone,and Abasanjo is giving the Taylor asyluminside of Nigeria.This continues until Nigeria elects a new president,President Ellen Sirleaf Johnson, who decides that she'sworking with the United States.And at this point, the United States says, you know,I think that Taylor should face his crimes in Sierra Leone.

    • 15:55

      He should face his day in court.And so they get Sirleaf Johnson to request his extradition.And she requests his extradition.She agrees to do this.She says, give me six months, so Ican consolidate my power bases here and notworry about Charles Taylor's supporters.And I will request his extraditiononly under the condition that he never comes back to Liberia.And so an agreement is made between Sirleaf Johnson

    • 16:19

      and the president of Nigeria to turn Charles Taylor over.After a 24-hour period where he triesto run away and disappear, he is captured.And he's put on a United Nations plane.He's never flown to Liberia.He's immediately flown to the capital of Sierra Leone, wherehe spends very, very little time and is flown to the Hague--because he's too destabilizing of a leader--

    • 16:39

      where he's prosecuted by the special court of Sierra Leoneand gets 50 years, which, given his age,is basically a life sentence.And he's now serving the sentencein a prison in Britain.So, these are four cases, four success stories,of international courts changing international relations.

    • 17:01

      Think about who litigated.Well, the World Trade Organization casewas brought by Europe.But the other cases were brought by non-state actors--by the pharmaceutical association in Peru,by Hadijatou Mani and her lawyers in Niger,and by the special prosecutor for Sierra Leone.These are all cases, with the exception of the WTO,that states would not have brought against each other.

    • 17:22

      And so this is one of the changes in international law.Who then complied?Well, Niger's government complied.They gave the money as promised to Hadijatou Mani.Indecopi complied.It rescinded Pfizer's patent.The US Congress complied.It repealed an illegal tax.And Nigeria eventually complied, and itturned over Charles Taylor.

    • 17:42

      What did it mean that they complied?Well, for Niger, it meant that they paid a fine.And they continue to work to end slavery,but it's very much a work in progress.They could do more.For Indecopi, it meant to just ignorethis illegal law on the books, whichstill is a law on the books.For the United States, it meant actually passing new taxlegislation, very hard to do.

    • 18:03

      And for Sierra Leone, it meant turning overCharles Taylor for prosecution.Now, these sound like happy stories.But I just want to point out, there'ssome real problems in the Charles Taylorcase, which is why people get cynicalabout international law.It's certainly true that if there notbeen an independent prosecutor or special court for SierraLeone, Charles Taylor would never have been prosecuted.There would not have been an indictment against him.

    • 18:26

      So without a special court of Sierra Leone,there would be no prosecution.Without an international independent prosecutorthere would be no indictment.And for the period from 2000, when the special courtwas created, to 2012, when Charles Taylor was convicted,his appeals were denied.And he was sent to prison.For that very long period of time,

    • 18:46

      it looked like this court was ineffective.It looked like Charles Taylor was living his lifein Nigeria scot-free.And when they finally did convict him,he was prosecuted for crimes in Sierra Leone which franklywere not his worst crimes.So, he got off relatively easy, even though it's

    • 19:06

      a life sentence, because his major crimes were notprosecuted.And the whole process took a lot of time and a lot of money,and it looked like too little, too late, and too Western.OK?So, it's good that Charles Taylor's in jail.And very few people would defend him.And it's a good thing that he's in jail.But the process was rather messy.And of course we can easily identifycases of heads of states that are indicted war criminals,

    • 19:29

      or should be indicted war criminals,and they are not facing their day in court.One case we know of is Omar al-Bashir,who is Sudan's president, who's currentlyunder indictment of the International Criminal Courtand currently in Sudan still as a head of state.And another person who should be indictedis Syria's president, Bashar al-Assad,who is still the president of Syria.

    • 19:49

      And he can't be indicted, because his country has notsigned the Rome Statute.And Assad is protected in the UN Security Council.So, the UN Security Council will notrefer his case to the International Criminal Court.Both of these individuals are still outand running their states, although I don't rule outthat they will someday see their day in court,just as Charles Taylor eventually did.

    • 20:11

      Many factors influence whether international litigation occursand whether it succeeds.And to win a legal case does not meanthat all problems disappear.Niger still has a very big slavery problem.But we can see governments around the world respondingto legal suits.And we see even powerful countries, in the United Statesand Europe, complying with international law

    • 20:33

      and international court rulings.Now, I explained in another videothat there are still a huge gap between our hopesand aspirations for international law.We know that law and litigation has its limits.In the United States, we often talkabout Brown v. Board of Education,and people ask, did this famous decision that desegregatedAmerican schools, did the decision actually

    • 20:54

      contribute to desegregating American schools?Or was it other political factors?And we look around and we see schools that stilllook very, very segregated.OK?So, winning a legal case does not solve all problems.But what we're seeing is that international lawhas created new resources and new toolsto challenge the behavior of governments.It allows weaker actors, weaker countries, private litigants

    • 21:16

      to challenge legal violations by governments,which they often comply with and sometimes they get upset about.And international law and international litigationcan make a real difference.But it's also true that we can thinkof examples, both domestic and international, wherelaw and litigation is not enough to solvethe many problems in the world.

    • 21:37

      If you'd like to read more about these stories,you can read my book The New Terrain of International Law:Courts, Politics, Rights.It has 18 case studies of international courts makinga difference.And I would also look at specific examplesfor specific conflicts and try to see,questioning skeptically.Has prosecution in Yugoslavia made a difference?

    • 21:58

      Has prosecution in Rwanda made a difference?There are wonderful books about human rightslaw making a difference.Beth Simmons has a book on human rights law,about when ratifying treaties makes a difference.And Catherine Sikkink has a book about foreign prosecutionsof human rights violations rising around the world.

International Law Making a Difference

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Abstract

Professor Karen Alter presents four case studies on how international law enforcement is changing state behavior. Highlighting issues of slavery, tax policy, patent law, and war crimes, she shows that international litigation is becoming a way to counter power and induce change.

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International Law Making a Difference

Professor Karen Alter presents four case studies on how international law enforcement is changing state behavior. Highlighting issues of slavery, tax policy, patent law, and war crimes, she shows that international litigation is becoming a way to counter power and induce change.

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