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Collin McDonald

Abstract

This Note examines whether amendment of the ITS charter is necessary to effectuate researcher access, or whether, as a matter of international law, in its capacity as an international organization (“IO”), the ITS can allow access without amendments. Addressing this question implicitly raises two collateral issues that inform the discussion. First, to what degree should an IO Member State's domestic legal framework dictate that State's position in a consensus-based IO decision-making process. Second, when changes in the global political context render an existing IO legal structure ill-suited to an IO's evolving mission, to what degree is it appropriate to re-interpret rather than amend an IO's charter documents in order to accommodate the requirements of the new situation? Part I of this Note first outlines the history of the ITS and the treaty creating it, then briefly describes the approach to personal data protection taken in the European Union and the United States. Part I also addresses jurisdictional issues: the legal status of an IO in relation to domestic legal regimes, and the EU approach to jurisdiction are both considered in the context of the Archive controversy. Part II of this Note contrasts the two basic positions taken during the negotiation process--for and against amendment--and considers how each approach might find support in treaty language, past practice, existent legal frameworks, and in equitable considerations. Part III posits a hypothetical means to proceed without amendment, but argues that alternative mechanisms are likely no less burdensome, and that the amendment process is itself beneficial. Finally, this Note concludes by suggesting a practical means to work around the current impasse, without compromising the integrity of the legal framework of the ITS.

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