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Tuna-Dolphin Controversy, the World Trade Organization, and the Liberal Project to Reconceptualize International Law Benedict Kingsbury

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Tuna-Dolphin Controversy, the World Trade Organization, and the Liberal Project to Reconceptualize International Law Benedict Kingsbury DukeLawMagan~n~e ____________ DEAN EDITOR ASSOCIATE EDITOR DESIGN CONSULTATION Pamela B. Gann Evelyn M. Pursley Janse Conover Haywood Azalea Graphics CONTENTS From the Dean ........................................................................ FORUM Germany's Unification and its Discontents Herbert L. Bernstein.................................................................. 4 The Tuna-Dolphin Controversy, the World Trade Organization, and the Liberal Project to Reconceptualize International Law Benedict Kingsbury.................................................................... 8 An International Manual for the Law of Armed Conflict at Sea Horace B. Robertson, Jr. ...................... ....................................... 14 ABOUT THE SCHOOL Duke's World Rule of Law Center and Founder Arthur Larson Made World Peace a Priority .................... ................. ....... ........ 20 Law School Center Promoting National Security Law Conferences ...... ........................................ ....... ................. 24 Duke Law Students Research Issues for War Crimes Tribunal ................................................................ 25 Duke Law School Faculty: Becoming International in a Variety of Ways............................ 27 Asia-America Institute Established ........................................... 33 THE DOCKET Faculty Profile: Donald L. Horowitz Exploring Ethnic Conflicts ....................................................... 35 Duke Law Alumni Practice Around the Globe......................... 38 Specially Noted......................................................................... 49 Faculty News ............................................................................ 61 Law Alumni Association News........ .............. ................... ........ 63 Alumni Activities ...................................................................... 69 Obituaries ................................................................................. 83 Duke Law Magazine is published under the auspices of the Office of the Dean, Duke University School of Law, Durham, North Carolina 27708 © Duke University 1995. VOLUME 13, NO.1 From the Dean his issue of the Duke Law much government monopoly; and lack Magazine focuses on law, law­ of intellectual property protection and Tyers, and legal education in a evolution to fit the new technology in global economy - topics of increasing most countries. Often domestic regu­ importance. lation, and international regulation to In the last few decades the United the extent that it exists, can retard the States has shifted from a domestic creation of natural linkages between manufacturing economy to a global financial markets and services and service economy. The shift is reflected information technology. The major in the evolution of American corpora­ driver of what happens in the develop­ tions into multinational corporations ment of capital markets and financial and by the global leadership of United services may be information technology States firms in many service fields, and telecommunications. For example, including legal services. These shifts we may discover in the future that will only intensifY as we move toward Microsoft has become the largest finan­ the 21st century. cial services deliverer in the world. Dean Pamela Gann Asia, outside of Japan, is expected At the same time, tremendous, to grow at seven to eight percent and darker issues exist. Development to require $1 trillion in new capital expand, so long as open flllancial throughout the world is causing seri­ investments in the next five years. These markets are maintained. These charac­ ous environmental degradation. The capital demands will be met from the teristics of the global economy enable projected environmental goods and private sector, which will take private nimble corporations to combine capital services market is expected to be at savings from throughout the world, and and labor in locations that favor the least $600 billion by 2100. The gap through private capital markets and highest quality production at the lowest between the "haves" and the "have financial services institutions, deploy total cost and that take advantage of nots" is widening, both domestically them where they are most needed. the lowest available trade barriers. and internationally. The income spread Areas outside the Organization for Eco­ Parallel to these trends are the between countries creates a threat that nomic Cooperation and Development revolutions in information technology demands assiduous attention, because and Asia are expected to grow rapidly and the transformations taking place if the "haves" do not share more with also, causing a large demand for capital the "have nots," huge immigration and there as well. Even in the West, signi­ refugee flows can occur. If funds do not ficant capital needs still exist, as illus­ The best law schools in the go into the "have not" countries, then trated by the privatization of the tele­ United States expect to work people are going to come out. Serious communications industry in Germany. ethnic conflict and human rights viola­ The financial services industry in the in the most dynamic and tions occur daily. Nuclear proliferation United States will be among the most difficult parts of the domestic is a threat ro world security. important actors in these global capital and world political economy. All of these significant issues that markets. I have just identified are global. More­ International trade flows are also over, all are legally intensive problems rapidly increasing. With the lowering in global telecommunications, which for national governments, international of trade barriers in many of the fastest will become the largest industty in the organizations, and the huge private growing parts of the world, the devel­ world. Capital and financial markets sector occupied by multinational cor­ opment of regional trade areas like and telecommunications are still porations. The best law schools in the NAFTA, and the transformation of affected, however, by serious global United States expect to work in the GATT into the World Trade Organi­ issues: continued barriers to free trade most dynamic and difficult parts of the zation, international trade should and investment in these sectors; too domestic and world political economy. 2 DUKE LAW MAGAZINE / WINTER 1995 These fields-global capital markets permits us to see things we would To succeed, they must also possess the and financial services, telecommuni­ otherwise take for granted. management and interpersonal skills cations and information technology, Students who expect to engage in required ro be effective in a large, com­ the environment, ethnic conflict and transnational practice are encouraged plex organization servicing the most human rights, international security­ to continue to improve their foreign talented and demanding clients in present some of the most pressing language skills and, in particular, to the world. Young lawyers must also be issues that they will be addressing. take law courses taught in foreign comfortable working in an environ­ The curricula of the high status languages. The percentage of foreign ment that reflects a great deal of uncer­ law schools unsurprisingly include a students enrolled in high status US tainty. The internationalization of great deal of attention to business practice and the rapidness of techno­ organization and the modern economic logical and business change create regulatory state, including the regula­ Imagine the cross-cultural significantly higher levels of business tion of securities markets and financial understanding that is uncertainty for clients and law firms institutions, telecommunications, the than in the past. environment, and intellectual property. gained when law school We already live in an interdepen­ Many courses focus on international classes composed of both dent world--economically; legally, and trade, business transactions, and forms in other ways. It is perhaps false even of transnational dispute resolution. American and non-American to categorize really important problems Most graduates of these schools will students are able to simulate and issues as domestic or international. encounter international and foreign transnaVonalnegoVaVons But this distinction has not yet disap­ law in their practice. For example, a peared in the organization of the legal practitioner in civil litigation likely will between lawyers from profession. Large US law firms service encounter foreign parties, the need to different countries. global corporations. Their young law­ discover evidence outside the jurisdic­ yers, whether American or foreign, tion of the United States, or the need are almost all trained in American to consider international arbitration. In law schools may well increase from 10 law schools, and mostly in high status all these instances, the US civil litigator percent to 20 percent, thereby enabling law schools. These schools possess an will come into contact with a foreign American students to work directly educational comparative advantage in legal system and lawyers. A practitioner with foreign students in the curriculum the training of lawyers, both domestic in corporate law increasingly works and to participate in a foreign language and foreign, for the 21st century. They with American clients making out­ table at lunch. Imagine the cross­ seek young women and men who have bound foreign investments and foreign cultural understanding that
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