Laurence Helfer

Duke University | DU · School of Law

iCourts is a research center for international courts and international law at the Faculty of Law in Copenhagen. The purpose of this book is to show how the establishment, operation and ambitions of a research center can impact a whole field of research.

Jueces y académicos llevan mucho tiempo debatiendo si el Tribunal Europeo de Derechos Humanos (en adelante, TEDH o el Tribunal) puede solo ampliar la protección de los derechos humanos en Europa, pero nunca disminuirlos. Estudios recientes han constatado que las reacciones políticas y las restricciones nacionales han influido en la jurisprudencia d...

Over the last decade, scholars have debated whether the shifting landscape of individual rights protection in Europe has influenced the decisions of the European Court of Human Rights (ECtHR). In our article, ‘Walking Back Human Rights in Europe?’, we analysed every minority opinion of the ECtHR Grand Chamber between 1998 and 2018. We found a subst...

Numerosos governos responderam à pandemia de COVID-19 declarando estados de emergência e restringindo as liberdades individuais protegidas pelo direito internacional. Entretanto, muito mais Estados adotaram medidas de emergência do que derrogaram formalmente as convenções de direitos humanos. O presente artigo avalia de forma crítica o sistema exis...

Numerous governments have responded to the COVID-19 pandemic by declaring states of emergency and restricting individual liberties protected by international law. However, many more states have adopted emergency measures than have formally derogated from human rights conventions. This Editorial Comment critically evaluates the existing system of hu...

Over the last decade, a growing number of countries have adopted new laws and other mechanisms to address a gap in national criminal legal systems: the absence of meaningful procedures to raise post-conviction claims of factual innocence. These legal and policy reforms have responded to a global surge of exonerations facilitated by the growth of na...

Judges and scholars have long debated whether the European Court of Human Rights (the ECtHR or the Court) can only expand, never diminish, human rights protections in Europe. Recent studies have found that political backlashes and national-level restrictions have influenced ECtHR case law. However, analysing whether the ECtHR is shifting in a regre...

This chapter discusses three credible attempts by African governments to restrict the jurisdiction of three similarly situated sub-regional courts in response to politically controversial rulings. In West Africa, when the Court of the Economic Community of West African States (ECOWAS) upheld allegations of torture by opposition journalists in Gambi...

This introduction provides an overview of thirteen essays selected in response to a worldwide call for papers for an Agora on “The International Legal Order and the Global Pandemic.” The essays in the Agora consider some of the most pressing challenges, as well as potential opportunities, that COVID-19 is creating for the international legal order....

This chapter reviews the research on treaty exit and draws upon a variety of recent examples and illustrations from a range of subject areas to discuss its practical, theoretical, and normative implications. Part I provides an overview of the international rules governing exit from multilateral and bilateral agreements, including key provisions of...

Human Rights in a Time of Populism - edited by Gerald L. Neuman April 2020

Cambridge Core - Human Rights - Human Rights in a Time of Populism - edited by Gerald L. Neuman

This article reviews state ratification and implementation of the Marrakesh Treaty since its conclusion in 2013. We find that most states have adhered closely to the Treaty’s text, thus creating a de facto global template of exceptions and limitations that has increasingly enabled individuals with print disabilities, libraries and schools to create...

Introduction to the Symposium on Transnational Futures of International Labor Law - Volume 113 - Adelle Blackett, Laurence R. Helfer

International organizations rarely die, but they often become irrelevant. The mere fact of the International Labour Organization's (ILO's) survival thus says little about its accomplishments or impact. Yet the ILO has a rich history of reinventing itself in response to shifts in global labor conditions, and it has responded to those changes with le...

This article introduces a Thematic Section and theorizes the multiple ways that judicializing international relations shifts power away from national executives and legislatures toward litigants, judges, arbitrators, and other nonstate decision-makers. We identify two preconditions for judicialization to occur—(1) delegation to an adjudicatory body...

It is a pleasure and an honour to give a masterclass on treaty withdrawal. This is an especially appropriate topic for an ESIL Research Forum focused on international law in times of disorder and contestation. I am grateful to Professor Yuval Shany and the other organisers for inviting me to share with you my long-standing interest in exit in inter...

The centenary of the International Labor Organization (ILO) provides an opportunity to take stock of the organization’s many achievements. But the centenary also calls for a clear-eyed assessment of the profound challenges that the ILO currently faces – including the growth of the informal and gig economies, digitization and automation, and rising...

Human rights attorneys and civil society groups in Africa have recently focused their advocacy efforts on subregional courts associated with economic integration communities in East, West and Southern Africa. The East African Court of Justice, the Court of Justice of the Economic Community of West African States, and the Tribunal of the Southern Af...

This chapter, forthcoming in the Oxford Handbook of Comparative Foreign Relations Law, considers two important and unresolved issues raised by unilateral withdrawal from or denunciation of treaties. The first issue concerns whether treaty obligations end in both international and domestic law after a state leaves a treaty. Exit often produces the s...

Courts in the United Kingdom and South Africa have recently issued important rulings that have constrained the executive's authority to withdraw from treaties in those countries. This essay considers whether these rulings might offer insights for treaty exit issues in the United States. We first provide an overview of U.S. law and practice regardin...

Introduction to Symposium on Treaty Exit at the Interface of Domestic and International Law - Volume 111 - Laurence R. Helfer

Public emergencies such as civil wars, natural disasters, and economic crises test the theoretical and practical commitments of international human rights law. During national crises, international law permits states to suspend many human rights protections in order to safeguard national security. States frequently overstep the limits of this autho...

This article provides a novel and provocative framework to assess the varied authority of international courts (ICs). We generate practicable metric that assesses de facto IC authority according to a conjunctive standard — the recognition of an obligation to comply with IC rulings, and the engagement in meaningful actions that push toward giving fu...

Contemporary international lawmaking is characterized by a rapid growth of “soft law” instruments. Interdisciplinary studies have followed suit, purporting to frame the key question states face as a choice between soft and “hard” law. But this literature focuses on only one form of hard law—treaties—and cooperation through formal institutions. Cust...

The ongoing European crisis has raised uncomfortable questions about the conditions under which treaty-based unions of nations like the EU or the EMU can legally expel a member—Greece being the most obvious candidate. The EU, for example, has rules governing the voluntary withdrawal of members, but says nothing about whether a member can be expelle...

The government of Kenya has employed a wide range of strategies to undermine the recently-dismissed prosecutions of President Uhuru Kenyatta and Deputy President William Ruto before the International Criminal Court (ICC). This Article argues that these strategies are part of an integrated backlash campaign against the ICC, one that encompasses seem...

The Andean Tribunal of Justice (ATJ) is the third most active international court and the oldest and most successful of eleven transplanted copies of the European Court of Justice (ECJ). Drawing on over a decade of interviews, archival research, and case coding, Transplanting International Courts examines the ATJ’s creation, doctrinal development,...

This paper discusses three credible attempts by African governments to restrict the jurisdiction of three similarly-situated sub-regional courts in response to politically controversial rulings. In West Africa, when the ECOWAS Court upheld allegations of torture by opposition journalists in the Gambia, that country’s political leaders sought to res...

The International Law Commission has a mandate from the U.N. General Assembly to codify and progressively develop international law. For most of the ILC’s history, the lion’s share of its work took the form of draft articles adopted by the General Assembly as the basis for multilateral conventions. The ILC’s activities received their principal lega...

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 o...

This chapter analyzes the origins, evolution, and impact of the TLO on access to medicines (A2M). This TLO is currently characterized by a low level of normative settlement and institutional alignment (the “low institutionalization” cell of Figure 1.3 in Halliday & Shaffer, Chapter 1). Disputes over the regulation of A2M are occurring in multiple t...

In a working paper based on extensive field research and interviews, Karen Alter, James Gathii, and I analyze three recent backlash attempts against sub-regional courts in East, West, and Southern Africa. Our paper analyzes credible proposals by African governments to restrict the jurisdiction of these courts in response to politically embarrassing...

The Oxford Handbook of International Adjudication offers a comprehensive study into the development, proliferation, and functions of international adjudicative bodies. The Handbook is divided into six parts. Part 1provides an overview of the origins and evolution of international adjudicatory bodies. Part 2 analyses the orders and families of inter...

The Oxford Handbook of International Adjudication offers a comprehensive study into the development, proliferation, and functions of international adjudicative bodies. The Handbook is divided into six parts. Part 1provides an overview of the origins and evolution of international adjudicatory bodies. Part 2 analyses the orders and families of inter...

The Oxford Handbook of International Adjudication offers a comprehensive study into the development, proliferation, and functions of international adjudicative bodies. The Handbook is divided into six parts. Part 1provides an overview of the origins and evolution of international adjudicatory bodies. Part 2 analyses the orders and families of inter...

The Oxford Handbook of International Adjudication offers a comprehensive study into the development, proliferation, and functions of international adjudicative bodies. The Handbook is divided into six parts. Part 1provides an overview of the origins and evolution of international adjudicatory bodies. Part 2 analyses the orders and families of inter...

The Oxford Handbook of International Adjudication offers a comprehensive study into the development, proliferation, and functions of international adjudicative bodies. The Handbook is divided into six parts. Part 1provides an overview of the origins and evolution of international adjudicatory bodies. Part 2 analyses the orders and families of inter...

The Oxford Handbook of International Adjudication offers a comprehensive study into the development, proliferation, and functions of international adjudicative bodies. The Handbook is divided into six parts. Part 1provides an overview of the origins and evolution of international adjudicatory bodies. Part 2 analyses the orders and families of inter...

The Oxford Handbook of International Adjudication offers a comprehensive study into the development, proliferation, and functions of international adjudicative bodies. The Handbook is divided into six parts. Part 1provides an overview of the origins and evolution of international adjudicatory bodies. Part 2 analyses the orders and families of inter...

The Oxford Handbook of International Adjudication offers a comprehensive study into the development, proliferation, and functions of international adjudicative bodies. The Handbook is divided into six parts. Part 1provides an overview of the origins and evolution of international adjudicatory bodies. Part 2 analyses the orders and families of inter...

The Oxford Handbook of International Adjudication offers a comprehensive study into the development, proliferation, and functions of international adjudicative bodies. The Handbook is divided into six parts. Part 1provides an overview of the origins and evolution of international adjudicatory bodies. Part 2 analyses the orders and families of inter...

The Oxford Handbook of International Adjudication offers a comprehensive study into the development, proliferation, and functions of international adjudicative bodies. The Handbook is divided into six parts. Part 1provides an overview of the origins and evolution of international adjudicatory bodies. Part 2 analyses the orders and families of inter...

The Oxford Handbook of International Adjudication offers a comprehensive study into the development, proliferation, and functions of international adjudicative bodies. The Handbook is divided into six parts. Part 1provides an overview of the origins and evolution of international adjudicatory bodies. Part 2 analyses the orders and families of inter...

The Oxford Handbook of International Adjudication offers a comprehensive study into the development, proliferation, and functions of international adjudicative bodies. The Handbook is divided into six parts. Part 1provides an overview of the origins and evolution of international adjudicatory bodies. Part 2 analyses the orders and families of inter...

The Oxford Handbook of International Adjudication offers a comprehensive study into the development, proliferation, and functions of international adjudicative bodies. The Handbook is divided into six parts. Part 1provides an overview of the origins and evolution of international adjudicatory bodies. Part 2 analyses the orders and families of inter...

The Oxford Handbook of International Adjudication offers a comprehensive study into the development, proliferation, and functions of international adjudicative bodies. The Handbook is divided into six parts. Part 1provides an overview of the origins and evolution of international adjudicatory bodies. Part 2 analyses the orders and families of inter...

The Oxford Handbook of International Adjudication offers a comprehensive study into the development, proliferation, and functions of international adjudicative bodies. The Handbook is divided into six parts. Part 1provides an overview of the origins and evolution of international adjudicatory bodies. Part 2 analyses the orders and families of inter...

The Oxford Handbook of International Adjudication offers a comprehensive study into the development, proliferation, and functions of international adjudicative bodies. The Handbook is divided into six parts. Part 1provides an overview of the origins and evolution of international adjudicatory bodies. Part 2 analyses the orders and families of inter...

The Oxford Handbook of International Adjudication offers a comprehensive study into the development, proliferation, and functions of international adjudicative bodies. The Handbook is divided into six parts. Part 1provides an overview of the origins and evolution of international adjudicatory bodies. Part 2 analyses the orders and families of inter...

The ECOWAS Community Court of Justice (ECCJ) is an increasingly active and bold international adjudicator of human rights violations in West Africa. Since acquiring jurisdiction over human rights issues in 2005, the ECCJ has issued several path-breaking judgments, including against the Gambia for the torture of journalists, against Niger for condon...

The Community Court of Justice of the Economic Community of West African States (ECOWAS Court) is an increasingly active and bold adjudicator of human rights. Since acquiring jurisdiction over human rights complaints in 2005, the ECOWAS Court has issued numerous decisions condemning human rights violations by the member states of the Economic Commu...

This Article explores the relationship between the legitimacy of international courts (ICs) and expansive judicial lawmaking. We compare lawmaking by three regional integration courts — the Court of Justice of the European Union (CJEU), the Andean Tribunal of Justice (ATJ), and the ECOWAS Community Court of Justice (ECCJ). These courts have similar...

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 intern...

This chapter, forthcoming in the Oxford Handbook of International Adjudication, provides an analytical 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 dimensio...

Do international court judgments influence the behavior of actors other than the parties to a dispute? Are international courts agents of policy change or do their judgments merely reflect evolving social and political trends? We develop a theory that specifies the conditions under which international courts can use their interpretive discretion to...

This chapter is a contribution to The Oxford Guide to Treaties (Duncan Hollis, ed., Oxford University Press, 2012). Part I of the chapter provides an overview of the international law rules governing exit from multilateral and bilateral treaties, including key provisions of the Vienna Convention on the Law of Treaties. Part II highlights the wide v...

Although there is an extensive literature on domestic legal transplants, far less is known about the transplantation of supranational judicial bodies. The Andean Tribunal of Justice (ATJ) is one of nearly a dozen copies of the European Court of Justice (ECJ), and the third most active international court. This article considers the origins and evol...

The article analyzes a growing trend in international human rights law: the submission of petitions by aggrieved individuals to multiple human rights courts, tribunals, or treaty bodies, each of which is authorized to review the petition and to determine whether the individuals? rights have been violated. Most commentators have viewed this practice...

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 intern...

The Andean Tribunal of Justice (ATJ) is a copy of the European Court of Justice (ECJ), and the third most active international court. This article reviews our findings based on an original coding of all ATJ preliminary rulings from 1984 to 2007, and over forty interviews in the region. We then compare Andean and European jurisprudence in three key...

This chapter is a contribution to "Balancing Wealth and Health: Global Administrative Law and the Battle over Intellectual Property and Access to Medicines in Latin America," Rochelle Dreyfuss & César Rodríguez-Garavito, eds. Part I of the chapter explains how the repeated interactions between the Andean Tribunal of Justice (ATJ) and domestic IP ag...

Several prominent human rights treaties attempt to minimize violations during emergencies by authorizing states to “derogate”—that is, to suspend certain civil and political liberties—in response to crises. The drafters of these treaties envisioned that international restrictions on derogations and international notification and monitoring mechanis...

In Samantar v. Yousuf, 130 S. Ct. 2278 (2010), the U.S. Supreme Court unanimously held that the Foreign Sovereign Immunities Act does not apply to lawsuits brought against foreign government officials for alleged human rights abuses. The Court did not necessarily clear the way for future human rights litigation against such officials, however, caut...

Human Rights and Intellectual Property: Mapping the Global Interface explores the intersections between intellectual property and human rights law and policy. The relationship between these two fields has captured the attention of governments, policymakers, and activist communities in a diverse array of international and domestic political and judi...

This Essay, a contribution to a symposium on Withdrawing from Customary International Law published in the Duke Journal of Comparative and International Law, analyzes the rules governing unilateral exit from multilateral treaties and considers the insights they offer for understanding how unilateral withdrawals from customary international law (CIL...

Are international courts power-seeking by nature, expanding the reach and scope of international rules and the courts’ authority where permissive conditions allow? Or, does expansionist lawmaking require special nurturing? We investigate the relative influences of nature versus nurture by comparing expansionist lawmaking in the European Court of Ju...

The international intellectual property system provides an important illustration of how regime complexity shapes domestic and international strategies of states and non-state actors. This article describes and graphically illustrates the multifaceted nature of the international intellectual property system. It then analyzes the consequences of reg...

In the European Union, national courts have been key intermediaries in helping to bolster and expand the authority of the European Court of Justice through its preliminary reference mechanism. This article analyzes the role of national judges in the Andean Community, a regional legal system whose judicial institution - the Andean Tribunal of Justic...

Are international courts (ICs) by nature expansionist lawmakers, expanding the reach and scope of their authority at the expense of state sovereignty when permissive conditions allow? Or are they naturally conservative, applying international law in straightforward and circumscribed ways unless environmental factors encourage them to be more expans...

The Andean Community has achieved surprising success in one part of its legal system. More than fourteen hundred rulings on intellectual property by the Andean Tribunal of Justice have helped national administrative agencies improve their decision making and resist pressure to deviate from Andean rules. This article explains the emergence of this i...

This article provides the first comprehensive analysis of the intellectual property case law of the European Court of Human Rights ("ECHR"). Within the last three years, the ECHR has issued a trio of intellectual property rulings interpreting the right of property protected by the European Convention on Human Rights. These decisions, which view int...

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...

This article documents the rise of nonconsensual international lawmaking and analyzes its consequences for the treaty design, treaty participation, and treaty adherence decisions of nation states. Grounding treaties upon the formal consent of states has numerous advantages for a decentralized and largely anarchic international legal system that suf...

This article, part of an interdisciplinary symposium on international delegation, analyzes grants of authority to international organizations (IOs) to monitor compliance with un-ratified treaties and non-binding norms and standards. It begins with a historical review of the different ways in which officials and review bodies of the International La...

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The Impact of International Law on International Cooperation: Theoretical Perspectives. Edited by Eyal Benvenisti and Moshe Hirsch. Cambridge, New York: Cambridge University Press, 2004. Pp. xiii, 316. Index. $95, £60. - Volume 101 Issue 1 - Laurence R. Helfer

This Article, prepared for a Symposium on Intellectual Property and Social Justice held at the University of California at Davis School of Law in March 2006, addresses the growing intersection of human rights law and intellectual property law. Its principal point of departure is a November 2005 General Comment on "the right of everyone to benefit f...