23.1

Summer

2022

The U.N. World Intellectual Property Organization's recent Draft Articles propose a tiered rights system in which the owners of sacred traditional cultural expressions (TCEs) receive more protective rights than the owners of secular TCEs. While the instinct to protect the intellectual property of indigenous groups is admirable in light of indigenous groups’ exploitation and exclusion from Western intellectual property regimes, a protection system that all nations accept has been difficult to reach. Even more so, a system that differentiates among TCEs based on their sacredness will need to be justified to convince as many nations as possible (or at least a critical mass of nations that heavily influence international intellectual property policy) to adopt WIPO’s proposed system. This Comment explores potential justifications for the Draft Provisions’ sacred versus secular distinction.

Private companies’ collection of facial images is on the rise globally, which has major implications for both economic development and privacy laws. This Comment uses the facial recognition technology company Clearview AI and the video sharing app TikTok as case studies to examine the problems raised by these practices.

Tom Ginsburg’s Democracies and International Law is an intellectual tour de force, emphasis on tour. He begins in Gambia and ends in Fiji, surveying a broad sweep of developments on national, regional, and global scales.

The use of international arrangements to “entrench” domestic political systems has been a quintessential post-Cold War-era project. Although this project had rather unsavory antecedents in the history of the international order—from the early nineteenth-century Congress of Vienna’s anti-republican alliance to the late twentieth-century machinations of the United States (U.S.) and the Soviet Union to maintain friendly governments in their respective spheres of influence—the 1990s version drew moral authority from the emergence of an ostensibly universal authoritative measure of governmental legitimacy.

In Democracies and International Law, Tom Ginsburg makes predictions about the character of international law in a world where authoritarian regimes continue to gain ascendancy, not only in number but also in sheer power. From an analytical and empirical perspective, he makes a convicting argument that international law is likely to accentuate features that protect and advance authoritarian leaders’ principal objective: survival in power.

In Democracies and International Law, Tom Ginsburg again shows his ability to craft general theories using his insight into the diversity of legal order. My comments will focus on Chapter 6 of this book because it contains the essence of Ginsburg’s comparative jurisprudence.

Tom Ginsburg’s excellent book Democracies and International Law provides a careful, multifaceted account of how democratic nation states and international instruments and institutions interact. This brief response Essay takes up just one thread in the book’s comprehensive tapestry. A pressing worry in contemporary democracies is the effect of social media platforms such as Facebook, Twitter, and YouTube on the quality of democratic debate. Many complain that platform-mediated misinformation and hate speech damage the democratic practice of public debate. They are also said to undermine dispositions of truthfulness and mutual trust. All these necessary predicates to democratic stability are said to be at risk due to misinformation of both domestic and foreign origin. I consider here whether international law or institutions provide resources for mitigating (or perhaps exacerbating) these harms.

In his new book, Democracies and International Law, Professor Tom Ginsburg asks, “What is the relationship between democracy and international law?” His book demonstrates—through an incredibly careful and rich empirical analysis—whether, how, and why democracies behave differently than non-democracies in their use of international legal institutions.

Illiberal regimes in Central and Eastern Europe deploy various methods to legitimize their actions and entrench their rule. In Poland, where the government has managed to capture the highest courts and partially pack them with politicized judges willing to support unconstitutional reforms of the justice system, these insidious practices have recently become even more refined.

International law is a mechanism of cooperation between states: it can make states vulnerable to betrayal, but also increase their chances for successful collaboration. In other words, complying with international law is like playing cooperate in a stag hunt game. Cooperating is an efficient strategy but not a strategy that is evolutionarily stable. If an autocracy emerges and starts to violate international law, democracies will violate international law in response.