Response to P. Yu

My thanks to Peter for his invaluable comments and to Opinio Juris and the Yale Journal of International Law for making this exchange possible. I am particularly grateful for Peter’s extraordinarily insightful critiques, which I think go a long way toward helping me develop the model that I propose in Protecting Rights Online.

Peter’s first critique identifies one of the primary difficulties associated with any model that allocates authority between international and domestic institutions – namely, the difficulty of determining precisely where to draw the line. As Peter rightly observes, allocating too much authority to states may effectively eviscerate the rights in question. Rights are only meaningful in their implementation and international institutions need to retain the ability to supervise state decisions in practice.

There are two primary ways in which a model of flexible harmonization allows for such control. Even when norms are imprecise, it is the international institution and not the state that determines whether deference to the state’s interpretation is appropriate. One might think of this as the flip side of the “kompetenz-kompetenz” doctrine. The international authority might defer to the state but retains the ability to determine when such deference is appropriate.

In addition, this allocation of authority is not static but rather depends on a variety of factors. For example, flexible harmonization should only operate in the grey areas in which states can legitimately disagree. With respect to free speech, for example, Peter asks whether it would be permissible for states to guarantee the right to free speech in a heavily-monitored and highly-regulated environment. My answer is that it depends on whether the monitoring and regulation in question would violate the norm of free speech. If individuals run the risk of sanction for what they say, this is certainly an impermissible “implementation” of the right. If the government monitors speech in order to identify threats to public safety, reasonable people might well disagree. In this area of disagreement, the international institution could decide to defer to the state’s interpretation of its obligations.

The grey area in which flexible harmonization applies will most commonly arise when there are conflicts between rights or between rights and public policies. (The rights of authors and consumers in intellectual property policy is one such area.) It is with respect to conflicts of rights that there is the greatest need for local decision making. These conflicts require the state to balance context-specific needs and concerns. In addition, there is a significant need for public participation in such decisions. Although the extent of public participation on the domestic level varies greatly among states, it will in many cases be easier to achieve on the domestic than the international level.

Peter also identifies several situations in which a model of flexible harmonization may not be appropriate. First, I share Peter’s concern about whether the norms needed by developing countries and local communities might be eroded by flexibility. Some constituencies may at times need strong, precise norms to protect local values and resources from outside pressures. This is particularly the case in the context of indigenous rights, where “flexibility” in implementation may end up serving as a proxy for exploitation. It may make sense in such situations to forgo binding norms in favor of non-binding but precise guidance that can gain strength with time. This is an issue I hope to investigate further as I develop this model.

Second, Peter argues that different countries and interest groups may value rights differently. Some may want greater precision on the international level while others would prefer that states have significant discretion in implementation. In the presence of such disagreement, however, imprecise norms may be preferable if the alternative is no norms. Even if the lack of precision makes monitoring difficult, it may be better to have states be part of a regime, since even imprecise norms can develop over time.

Peter also quite rightly asks whether we can realistically expect cooperation outside of the context of access to medicines. Although I hope I am not being too optimistic, I agree that there are few access to knowledge issues that present as compelling of a case as essential medicines. This has significant implications for strategy. In the medicines context, public outcry was instrumental in pressuring pharmaceutical companies to lower their prices in some cases. It may be more difficult to generate the same level of public protest regarding the effect of copyright restrictions on the public domain.

This is precisely where a human rights framework can be most valuable, however. The language of rights transforms a statement of need into a claim that can be asserted against the state. For example, even if we are not able to assert a human rights claim to access particular cultural works, we can at least begin to talk about the public domain in human rights terms. A vibrant and robust public domain is not just an aspirational goal but a public good to which we have a claim that we can assert against the state. Human rights language may make it easier to mobilize constituencies to bring to bear the pressure that is needed to achieve intellectual property policies that respect human rights. A human rights campaign to protect the public domain would also help to take the discussion about access out of commercial law terms and transform it into an issue of human welfare and dignity.

Finally, I agree with Peter that the questions of how norms should be harmonized and what process will be most successful in achieving this goal are crucial. The answer to these questions will depend on the context, and this points to a need for further empirical research into how norms of access and exclusivity have been translated into domestic law.

My thanks again to Peter, Opinio Juris, and YJIL for this online symposium. I welcome further comments at molly.beutz@nyls.edu.