Trips dispute settlement and the sources of (international) copyright law

Journal of the Copyright Society of the U.S.A.

Volumn 49, Issue 2, 2001, Pages 584-633

  Okediji, Ruth ^a  

^a NONE

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EID: 0040970693     PISSN: 08863520     EISSN: None     Source Type: Journal    
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References (313)

1. See Agreement on Trade-Related Aspects of Intellectual Property Rights, Apr. 15, 1994, Annex 1C, 33 I.L.M. 1197 (1994) [hereinafter TRIPs Agreement].
2. The Uruguay Round of trade talks revolutionized half a century of trade relations, both in its expanded scope of coverage, as well as in the innovative changes to Member state accession. The "single-package" principle of the Uruguay Round replaced the old GATT system of membership, which allowed states to pick and choose which obligations would be binding on them. Under the WTO system, all the principal treaty agreements must be accepted by a ratifying state. The three principal Agreements are: 1) the General Agreement on Tarriffs and Trade (GATT) 1947 & 1994; 2) the General Agreement on Trade in Services (GATS); and 3) the TRIPs Agreement. By ratifying the WTO Charter, countries are subject to these three agreements, the Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU), and the Trade Policy Review Mechanism. There is an extensive body of literature on the Uruguay Round Agreements. For a detailed overview of the achievements of the Uruguay Round, see John H. Jackson, Managing the Trading System: The World Trade Organization and the Post-Uruguay Round GATT Agenda, in MANAGING THE WORLD ECONOMY: FIFTY YEARS AFTER BRETTON WOODS 131-52 (Peter B. Kenen & HE eds., 1994). For examples of leading works on the Uruguay Round accomplishments in intellectual property, see J. H. Reichman, Universal Minimum Standards of Intellectual Property Protection Under the TRIPs Component of the WTO Agreement, in INTELLECTUAL PROPERTY AND INTERNATIONAL TRADE: THE TRIPs AGREEMENT 21 (Carlos M. Correa & Abdulqawi A. Yusuf eds., 1998) [hereinafter Reichman, Universal Minimum Standards]; FROM GATT TO TRIPS - THE AGREEMENT ON TRADE-RELATED ASPECTS OF INTELLECTUAL PROPERTY RIGHTS 248, 249-51 (ICC Studies Vol. 18, Friedrich-Karl Beier & Gerhard Schricker eds., 1996).
3. The Uruguay Round of trade talks revolutionized half a century of trade relations, both in its expanded scope of coverage, as well as in the innovative changes to Member state accession. The "single-package" principle of the Uruguay Round replaced the old GATT system of membership, which allowed states to pick and choose which obligations would be binding on them. Under the WTO system, all the principal treaty agreements must be accepted by a ratifying state. The three principal Agreements are: 1) the General Agreement on Tarriffs and Trade (GATT) 1947 & 1994; 2) the General Agreement on Trade in Services (GATS); and 3) the TRIPs Agreement. By ratifying the WTO Charter, countries are subject to these three agreements, the Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU), and the Trade Policy Review Mechanism. There is an extensive body of literature on the Uruguay Round Agreements. For a detailed overview of the achievements of the Uruguay Round, see John H. Jackson, Managing the Trading System: The World Trade Organization and the Post-Uruguay Round GATT Agenda, in MANAGING THE WORLD ECONOMY: FIFTY YEARS AFTER BRETTON WOODS 131-52 (Peter B. Kenen & HE eds., 1994). For examples of leading works on the Uruguay Round accomplishments in intellectual property, see J. H. Reichman, Universal Minimum Standards of Intellectual Property Protection Under the TRIPs Component of the WTO Agreement, in INTELLECTUAL PROPERTY AND INTERNATIONAL TRADE: THE TRIPs AGREEMENT 21 (Carlos M. Correa & Abdulqawi A. Yusuf eds., 1998) [hereinafter Reichman, Universal Minimum Standards]; FROM GATT TO TRIPS - THE AGREEMENT ON TRADE-RELATED ASPECTS OF INTELLECTUAL PROPERTY RIGHTS 248, 249-51 (ICC Studies Vol. 18, Friedrich-Karl Beier & Gerhard Schricker eds., 1996).
4. The Uruguay Round of trade talks revolutionized half a century of trade relations, both in its expanded scope of coverage, as well as in the innovative changes to Member state accession. The "single-package" principle of the Uruguay Round replaced the old GATT system of membership, which allowed states to pick and choose which obligations would be binding on them. Under the WTO system, all the principal treaty agreements must be accepted by a ratifying state. The three principal Agreements are: 1) the General Agreement on Tarriffs and Trade (GATT) 1947 & 1994; 2) the General Agreement on Trade in Services (GATS); and 3) the TRIPs Agreement. By ratifying the WTO Charter, countries are subject to these three agreements, the Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU), and the Trade Policy Review Mechanism. There is an extensive body of literature on the Uruguay Round Agreements. For a detailed overview of the achievements of the Uruguay Round, see John H. Jackson, Managing the Trading System: The World Trade Organization and the Post-Uruguay Round GATT Agenda, in MANAGING THE WORLD ECONOMY: FIFTY YEARS AFTER BRETTON WOODS 131-52 (Peter B. Kenen & HE eds., 1994). For examples of leading works on the Uruguay Round accomplishments in intellectual property, see J. H. Reichman, Universal Minimum Standards of Intellectual Property Protection Under the TRIPs Component of the WTO Agreement, in INTELLECTUAL PROPERTY AND INTERNATIONAL TRADE: THE TRIPs AGREEMENT 21 (Carlos M. Correa & Abdulqawi A. Yusuf eds., 1998) [hereinafter Reichman, Universal Minimum Standards]; FROM GATT TO TRIPS - THE AGREEMENT ON TRADE-RELATED ASPECTS OF INTELLECTUAL PROPERTY RIGHTS 248, 249-51 (ICC Studies Vol. 18, Friedrich-Karl Beier & Gerhard Schricker eds., 1996).
5. Jane Ginsburg, International Copyright: From a "Bundle" of National Copyright Laws to a Supranational Code?, 47 J. COPYR. SOC'Y 265, 266 (2000) [hereinafter Ginsburg, International Copyright].
6. According to the TRIPs Preamble, new rules were necessary concerning, inter alia, "the provision of adequate standards and principles concerning the availability, scope and use of trade-related intellectual property rights; the provision of effective and appropriate means for the enforcement of trade-related intellectual property rights. . . ." TRIPs Agreement, supra note 1. See also Punta del Este Ministerial Declaration, Sept. 20, 1986, GATT B.I.S.D. (33d Supp.) at 19, 25-26 (1987) (establishing the mandate for the Negotiation Group on TRIPs). The Ministerial Declaration identified, inter alia, "the need to promote effective and adequate protection of intellectual property rights. . . ." Accordingly, ensuring international enforcement of the proprietary rights recognized by the TRIPs Agreement was a primary focus during the Uruguay Round negotiations.
7. Ginsburg, International Copyright, supra note 3.
8. See Marrakesh Agreement Establishing the World Trade Organization, Apr. 15, 1994, 33 I.L.M. 1144 [hereinafter WTO Agreement]. Article 3(3) provides that the WTO shall administer the Understanding on Rules and Procedures Governing the Settlement of Disputes. See Understanding on Rules and Procedures Governing the Settlement of Disputes, Apr. 15,1994, Final Act Embodying the Results of the Uruguay Round of Multilateral Trade Negotiations, Annex 2, 33 I.L.M. 1125, 1226 [hereinafter DSU].
9. The Council for TRIPs is responsible for administering the TRIPs Agreement. Its duties include: monitoring the operation of the TRIPs Agreement with a particular emphasis on compliance. See TRIPs Agreement, supra note 1, art. 68; receiving notifications from members regarding laws, regulations, judicial decisions and administrative rulings in their countries on any subject matter pertaining to the TRIPs Agreement. Id. art. 63(1), (2); reviewing the implementation of TRIPs in developing countries two years after the expiration of the transition period, and at identical intervals thereafter. Id. art. 71(1).
10. See, e.g., Paris Convention for the Protection of Industrial Property, Mar. 20, 1883, last revised at Stockholm, July 14, 1967, 21 U.S.T. 1538, 828 U.N.T.S. 305 [hereinafter Paris Convention]; Berne Convention for the Protection of Literary and Artistic Works, last revised at Paris, July 24, 1971, S. TREATY Doc. No. 99-27, 99th Cong. 37 (1986), 828 U.N.T.S. 221 [hereinafter Berne Convention]. The TRIPs Agreement expressly recognizes the continuing legal force of these treaties by stating that "Nothing in Parts I to IV of this Agreement shall derogate from existing obligations that members have to each other under the Paris Convention [or] the Berne Convention. . . ." See TRIPs Agreement, supra note 1, art. 2(2). Most important, the TRIPs Agreement incorporates, by reference, provisions of the Paris Convention (Articles 1-12 and 19) and the Berne Convention (Articles 1-21 and the Appendix). See TRIPs Agreement, supra note 1, arts. 2(1), 9(1). Members are, however, not obligated to protect moral rights. See id. art. 9(1).
11. Ginsburg, International Copyright, supra note 3, at 266 (noting "the traditional image of international copyright as essentially a bundle of national, territorially defined, rights"; Jon Baumgarten, Primer on the Principles of International Copyright, in FOURTH ANNUAL U.S. COPYRIGHT OFFICE SPEAKS: CONTEMPORARY COPYRIGHT AND INTELLECTUAL PROPERTY ISSUES 470, 471 (1992) (noting that there is no international copyright code but "[w]hat does exist is a complex of copyright relations among sovereign states"). See also Marshall A. Leaffer, Protecting United States Intellectual Property Abroad: Toward a New Multilateralism, 76 IOWA L. REV. 273 (1991); J. H. Reichman, From Free Riders to Fair Followers: Global Competition Under the TRIPS Agreement, 29 N.Y.U. J. INT'L L. & POL. 11 (1997) [hereinafter Reichman, From Free Riders to Fair Followers]; Paul Edward Geller, From Patchwork to Network: Strategies for International Intellectual Property in a Flux, 9 DUKE J. COMP. & INT'L L. 69 (1998).
12. Ginsburg, International Copyright, supra note 3, at 266 (noting "the traditional image of international copyright as essentially a bundle of national, territorially defined, rights"; Jon Baumgarten, Primer on the Principles of International Copyright, in FOURTH ANNUAL U.S. COPYRIGHT OFFICE SPEAKS: CONTEMPORARY COPYRIGHT AND INTELLECTUAL PROPERTY ISSUES 470, 471 (1992) (noting that there is no international copyright code but "[w]hat does exist is a complex of copyright relations among sovereign states"). See also Marshall A. Leaffer, Protecting United States Intellectual Property Abroad: Toward a New Multilateralism, 76 IOWA L. REV. 273 (1991); J. H. Reichman, From Free Riders to Fair Followers: Global Competition Under the TRIPS Agreement, 29 N.Y.U. J. INT'L L. & POL. 11 (1997) [hereinafter Reichman, From Free Riders to Fair Followers]; Paul Edward Geller, From Patchwork to Network: Strategies for International Intellectual Property in a Flux, 9 DUKE J. COMP. & INT'L L. 69 (1998).
13. Ginsburg, International Copyright, supra note 3, at 266 (noting "the traditional image of international copyright as essentially a bundle of national, territorially defined, rights"; Jon Baumgarten, Primer on the Principles of International Copyright, in FOURTH ANNUAL U.S. COPYRIGHT OFFICE SPEAKS: CONTEMPORARY COPYRIGHT AND INTELLECTUAL PROPERTY ISSUES 470, 471 (1992) (noting that there is no international copyright code but "[w]hat does exist is a complex of copyright relations among sovereign states"). See also Marshall A. Leaffer, Protecting United States Intellectual Property Abroad: Toward a New Multilateralism, 76 IOWA L. REV. 273 (1991); J. H. Reichman, From Free Riders to Fair Followers: Global Competition Under the TRIPS Agreement, 29 N.Y.U. J. INT'L L. & POL. 11 (1997) [hereinafter Reichman, From Free Riders to Fair Followers]; Paul Edward Geller, From Patchwork to Network: Strategies for International Intellectual Property in a Flux, 9 DUKE J. COMP. & INT'L L. 69 (1998).
14. Ginsburg, International Copyright, supra note 3, at 266 (noting "the traditional image of international copyright as essentially a bundle of national, territorially defined, rights"; Jon Baumgarten, Primer on the Principles of International Copyright, in FOURTH ANNUAL U.S. COPYRIGHT OFFICE SPEAKS: CONTEMPORARY COPYRIGHT AND INTELLECTUAL PROPERTY ISSUES 470, 471 (1992) (noting that there is no international copyright code but "[w]hat does exist is a complex of copyright relations among sovereign states"). See also Marshall A. Leaffer, Protecting United States Intellectual Property Abroad: Toward a New Multilateralism, 76 IOWA L. REV. 273 (1991); J. H. Reichman, From Free Riders to Fair Followers: Global Competition Under the TRIPS Agreement, 29 N.Y.U. J. INT'L L. & POL. 11 (1997) [hereinafter Reichman, From Free Riders to Fair Followers]; Paul Edward Geller, From Patchwork to Network: Strategies for International Intellectual Property in a Flux, 9 DUKE J. COMP. & INT'L L. 69 (1998).
15. Even where international agreements included obligations that reflected stronger standards of protection, legal strategies available to countries such as reservations to treaty provisions, or selective ratifications of treaty amendments, were employed by different countries on a wide range of issues. Consequently, the network of treaty obligations that did exist in the pre-TRIPs era was necessarily porous as well as incomplete in scope. Since 1979, the Berne Convention has limited the possibility of reservations made 7o any Berne obligations. See Berne Convention, supra note 8, art. 30. The TRIPs Agreement precludes reservations without the consent of other members. See TRIPs Agreement, supra note 1, art. 72.
16. See, e.g., Monique Cordray, GATT v. WIPO, 76 J. PAT. & TRADEMARK OFF. SOC'Y 121, 131-33 (1994) (noting that agreements prior to TRIPs were ineffective because they lacked enforcement mechanisms); Evelyn Su, Comment, The Winners and the Losers: The Agreement on Trade-Related Aspects of Intellectual Property Rights and Its Effects on Developing Countries, 23 HOUS. J. INT'L L. 169, 183-84 (2000) ("The WIPO dispute settlement mechanism has been called 'effectively worthless' because it relies on the voluntary cooperation of the party receiving the unfavorable ruling in enforcing a dispute resolution."). See also Ruth L. Gana, Has Creativity Died in the Third World? Some Implications of the Internationalization of Intellectual. Property, 24 DENV. J. INT'L L. & POL'Y 109, 121 (1995) (discussing the enforcement mechanisms of both the pre-TRIPs agreements and the TRIPs Agreement).
17. See, e.g., Monique Cordray, GATT v. WIPO, 76 J. PAT. & TRADEMARK OFF. SOC'Y 121, 131-33 (1994) (noting that agreements prior to TRIPs were ineffective because they lacked enforcement mechanisms); Evelyn Su, Comment, The Winners and the Losers: The Agreement on Trade-Related Aspects of Intellectual Property Rights and Its Effects on Developing Countries, 23 HOUS. J. INT'L L. 169, 183-84 (2000) ("The WIPO dispute settlement mechanism has been called 'effectively worthless' because it relies on the voluntary cooperation of the party receiving the unfavorable ruling in enforcing a dispute resolution."). See also Ruth L. Gana, Has Creativity Died in the Third World? Some Implications of the Internationalization of Intellectual. Property, 24 DENV. J. INT'L L. & POL'Y 109, 121 (1995) (discussing the enforcement mechanisms of both the pre-TRIPs agreements and the TRIPs Agreement).
18. See, e.g., Monique Cordray, GATT v. WIPO, 76 J. PAT. & TRADEMARK OFF. SOC'Y 121, 131-33 (1994) (noting that agreements prior to TRIPs were ineffective because they lacked enforcement mechanisms); Evelyn Su, Comment, The Winners and the Losers: The Agreement on Trade-Related Aspects of Intellectual Property Rights and Its Effects on Developing Countries, 23 HOUS. J. INT'L L. 169, 183-84 (2000) ("The WIPO dispute settlement mechanism has been called 'effectively worthless' because it relies on the voluntary cooperation of the party receiving the unfavorable ruling in enforcing a dispute resolution."). See also Ruth L. Gana, Has Creativity Died in the Third World? Some Implications of the Internationalization of Intellectual. Property, 24 DENV. J. INT'L L. & POL'Y 109, 121 (1995) (discussing the enforcement mechanisms of both the pre-TRIPs agreements and the TRIPs Agreement).
19. The conditions that encourage treaty negotiation are multivariate. They include factors spanning both the domestic and international sphere. See Robert D. Putnam, Diplomacy and Domestic Politics: The Logic of Two-Level Games, 42 INT. ORG. 427-29 (1988) (giving some practical examples of domestic/international linkages). Indeed, some issue-specific treaties may result from complex interactions in other subjects giving rise to a constellation of strategic diplomatic relationships between two or more countries. From a United States perspective, this is most evident with respect to human rights accords which are often broadly linked to foreign aid or favorable commercial relations as part of a cluster of foreign policy objectives. An example specific to intellectual property is the official policy linking United States trade deficit to copyright piracy in developing countries, notably in Asia, and in turn linking United States trade relations in the region to human rights protection. United States trade policy and intellectual property policy have been increasingly co-dependent since the late 1980's. See William P. Alford, How Theory Does - And Does Not - Matter: American Approaches to Intellectual Property Law in East Asia, 13 UCLA PAC. BASIN L.J. 8 (1994); Ruth Gana Okediji, Copyright and Public Welfare in Global Perspective, 7 IND. J. GLOBAL LEGAL STUDIES 117 (1999) [hereinafter Okediji, Copyright and Public Welfare]. For a general discussion of linkages between domestic policy concerns and trade policy, see Frieder Roessler, Domestic Policy Objectives and Multilateral Trade Order, in THE WTO AS AN INTERNATIONAL ORGANIZATION 213 (Anne O. Krueger ed., 1998); Joel P. Trachtman, The WTO As an International Organization, 92 AM. J. INT'L L. 598 (1998) (book review).
20. The conditions that encourage treaty negotiation are multivariate. They include factors spanning both the domestic and international sphere. See Robert D. Putnam, Diplomacy and Domestic Politics: The Logic of Two-Level Games, 42 INT. ORG. 427-29 (1988) (giving some practical examples of domestic/international linkages). Indeed, some issue-specific treaties may result from complex interactions in other subjects giving rise to a constellation of strategic diplomatic relationships between two or more countries. From a United States perspective, this is most evident with respect to human rights accords which are often broadly linked to foreign aid or favorable commercial relations as part of a cluster of foreign policy objectives. An example specific to intellectual property is the official policy linking United States trade deficit to copyright piracy in developing countries, notably in Asia, and in turn linking United States trade relations in the region to human rights protection. United States trade policy and intellectual property policy have been increasingly co-dependent since the late 1980's. See William P. Alford, How Theory Does - And Does Not - Matter: American Approaches to Intellectual Property Law in East Asia, 13 UCLA PAC. BASIN L.J. 8 (1994); Ruth Gana Okediji, Copyright and Public Welfare in Global Perspective, 7 IND. J. GLOBAL LEGAL STUDIES 117 (1999) [hereinafter Okediji, Copyright and Public Welfare]. For a general discussion of linkages between domestic policy concerns and trade policy, see Frieder Roessler, Domestic Policy Objectives and Multilateral Trade Order, in THE WTO AS AN INTERNATIONAL ORGANIZATION 213 (Anne O. Krueger ed., 1998); Joel P. Trachtman, The WTO As an International Organization, 92 AM. J. INT'L L. 598 (1998) (book review).
21. The conditions that encourage treaty negotiation are multivariate. They include factors spanning both the domestic and international sphere. See Robert D. Putnam, Diplomacy and Domestic Politics: The Logic of Two-Level Games, 42 INT. ORG. 427-29 (1988) (giving some practical examples of domestic/international linkages). Indeed, some issue-specific treaties may result from complex interactions in other subjects giving rise to a constellation of strategic diplomatic relationships between two or more countries. From a United States perspective, this is most evident with respect to human rights accords which are often broadly linked to foreign aid or favorable commercial relations as part of a cluster of foreign policy objectives. An example specific to intellectual property is the official policy linking United States trade deficit to copyright piracy in developing countries, notably in Asia, and in turn linking United States trade relations in the region to human rights protection. United States trade policy and intellectual property policy have been increasingly co-dependent since the late 1980's. See William P. Alford, How Theory Does - And Does Not - Matter: American Approaches to Intellectual Property Law in East Asia, 13 UCLA PAC. BASIN L.J. 8 (1994); Ruth Gana Okediji, Copyright and Public Welfare in Global Perspective, 7 IND. J. GLOBAL LEGAL STUDIES 117 (1999) [hereinafter Okediji, Copyright and Public Welfare]. For a general discussion of linkages between domestic policy concerns and trade policy, see Frieder Roessler, Domestic Policy Objectives and Multilateral Trade Order, in THE WTO AS AN INTERNATIONAL ORGANIZATION 213 (Anne O. Krueger ed., 1998); Joel P. Trachtman, The WTO As an International Organization, 92 AM. J. INT'L L. 598 (1998) (book review).
22. The conditions that encourage treaty negotiation are multivariate. They include factors spanning both the domestic and international sphere. See Robert D. Putnam, Diplomacy and Domestic Politics: The Logic of Two-Level Games, 42 INT. ORG. 427-29 (1988) (giving some practical examples of domestic/international linkages). Indeed, some issue-specific treaties may result from complex interactions in other subjects giving rise to a constellation of strategic diplomatic relationships between two or more countries. From a United States perspective, this is most evident with respect to human rights accords which are often broadly linked to foreign aid or favorable commercial relations as part of a cluster of foreign policy objectives. An example specific to intellectual property is the official policy linking United States trade deficit to copyright piracy in developing countries, notably in Asia, and in turn linking United States trade relations in the region to human rights protection. United States trade policy and intellectual property policy have been increasingly co-dependent since the late 1980's. See William P. Alford, How Theory Does - And Does Not - Matter: American Approaches to Intellectual Property Law in East Asia, 13 UCLA PAC. BASIN L.J. 8 (1994); Ruth Gana Okediji, Copyright and Public Welfare in Global Perspective, 7 IND. J. GLOBAL LEGAL STUDIES 117 (1999) [hereinafter Okediji, Copyright and Public Welfare]. For a general discussion of linkages between domestic policy concerns and trade policy, see Frieder Roessler, Domestic Policy Objectives and Multilateral Trade Order, in THE WTO AS AN INTERNATIONAL ORGANIZATION 213 (Anne O. Krueger ed., 1998); Joel P. Trachtman, The WTO As an International Organization, 92 AM. J. INT'L L. 598 (1998) (book review).
23. The conditions that encourage treaty negotiation are multivariate. They include factors spanning both the domestic and international sphere. See Robert D. Putnam, Diplomacy and Domestic Politics: The Logic of Two-Level Games, 42 INT. ORG. 427-29 (1988) (giving some practical examples of domestic/international linkages). Indeed, some issue-specific treaties may result from complex interactions in other subjects giving rise to a constellation of strategic diplomatic relationships between two or more countries. From a United States perspective, this is most evident with respect to human rights accords which are often broadly linked to foreign aid or favorable commercial relations as part of a cluster of foreign policy objectives. An example specific to intellectual property is the official policy linking United States trade deficit to copyright piracy in developing countries, notably in Asia, and in turn linking United States trade relations in the region to human rights protection. United States trade policy and intellectual property policy have been increasingly co-dependent since the late 1980's. See William P. Alford, How Theory Does - And Does Not - Matter: American Approaches to Intellectual Property Law in East Asia, 13 UCLA PAC. BASIN L.J. 8 (1994); Ruth Gana Okediji, Copyright and Public Welfare in Global Perspective, 7 IND. J. GLOBAL LEGAL STUDIES 117 (1999) [hereinafter Okediji, Copyright and Public Welfare]. For a general discussion of linkages between domestic policy concerns and trade policy, see Frieder Roessler, Domestic Policy Objectives and Multilateral Trade Order, in THE WTO AS AN INTERNATIONAL ORGANIZATION 213 (Anne O. Krueger ed., 1998); Joel P. Trachtman, The WTO As an International Organization, 92 AM. J. INT'L L. 598 (1998) (book review).
24. This is applicable to a variety of international agreements. The conditions that foster successful bargaining are not necessarily applicable, or extended to, the compliance interests of states. The intensely dynamic structure of international relations, and the rapidity with which interests and stakes are transformed, partially explain this disjunction between negotiation interests and compliance prospects. A two-stage game model of the TRIPs negotiations which examines the structure of the negotiations and strategic moves by players to achieve a bargain, demonstrates this point quite well. For an application of a two-level game model to the TRIPs negotiations, see Ruth Okediji, A Cartography of WTO TRIPS Dispute Settlement and the Future of Intellectual Property Policy (2002) (working paper on file with the author) [hereinafter Okediji, Cartography].
25. For a leading work on two-level games in international negotiations, see Putnam, supra note 12, at 427.
26. One of the enduring paradoxes in international law is the classic conviction that sovereign states are bound by positive law in their relationships inter se. Almost from the inception of the discipline of international law, critics questioned its legitimacy as "law," given the absence of institutions to make, interpret and enforce such law. These source and compliance issues are at the heart of the classic, axiomatic inquiry "is international law 'law'?" International law scholars have long rejected these challenges to the binding character of international law. As one leading international scholar asserts: [M]uch misunderstanding is due to a failure to recognize law where it exists. That failure may be due to a narrow conception of law generally. . . . [O]ne tends to think of law as consisting of a few prohibitory rules. . . . But international law [like domestic law] . . . is much more and quite different. Although there is no international 'government,' there is an international 'society'; law includes the structure of that society, its institutions, forms, and procedures for daily activity, the assumptions on which the society is founded and the concepts which permeate it, the status, rights, responsibilities, obligations of the nations which comprise that society, the various relations between them, and the effects of those relations. . . . Even nations that wish to escape from such arrangements are usually compelled to invoke legal principles of escape - whether by reinterpreting the agreement, by attacking its original validity, or by invoking some principle of law to claim that it permits escape or is no longer valid or binding. LOUIS HENKIN, HOW NATIONS BEHAVE: LAW AND FOREIGN POLICY 13-27 (2d ed. 1979). Another leading scholar remarked, "states may often violate international law, just as individuals often violate municipal law; but no more than individuals do states defend their violations by claiming that they are above the law."
27. J. L. BRIERLY, THE OUTLOOK FOR INTERNATIONAL LAW 5 (1944).
28. Notwithstanding the debate over the status of international law, it is clear that certain rules of inter-state relationships exist and these rules are observed by states, even if not all rules are observed by all states at all times. The fundamental critique of international "law" as lacking an enforcement mechanism obscures the role of voluntary compliance which has been quite significant in international law. Why these rules are observed is yet another strain of the debate over the legitimacy of international law. For some examples of the extensive literature over this topic, see THOMAS FRANCK, THE POWER OF LEGITIMACY AMONG NATIONS (1990), and HENKIN, supra.
29. Professors Henkin and Franck both emphasize voluntary compliance. See also HANS MORGENTHAU & THOMPSON, POLITICS AMONG NATIONS (6th ed. 1985) (discussing power as an enforcer of international obligations);
30. J. H. BRIERLY, THE LAW OF NATIONS, 100-02 (Humphrey Waldock ed., 6th ed. 1963) (discussing the absence of centralized sanctions, but pointing to the limitations of the use of force by states under the Covenant of the League of Nations and the United Nations Charter);
31. Lori F. Damrosch, Enforcing International Law Through Non-Forcible Measures, 269 REC. DES COURS 9, 19-24 (1997) (discussing various ways that international law is enforced).
32. One explanation for compliance by autonomous sovereign states is that states are concerned, as a moral and practical matter, about the costs of acquiring a reputation for not abiding by treaty obligations. The critical issue is how states judge their self-interest and how a reputation for compliance might affect negotiation of international agreements and even more pertinent, the promotion of stable international relations. See Detlev F. Vagts, The United States and Its Treaties: Observance and Breach, 95 AM. J. INT'L L. 313, 323-29 (2001) (discussing the bases for treaty compliance in the absence of a Constitutional mandate). Professor Vagts explores five possible grounds for compliance - what he describes as a "penumbral obligation" consisting of (i) honor; (ii) contract theory; (iii) natural law; (iv) promise, will and consent theories; and (v) national interest, which encompasses concerns about reputation. He notes the disparate perceptions about the value of reputation between international law and international relations scholars, and the experiences of diplomats and consular officials who have to respond practically to perceptions of United States fidelity to its international commitments.
33. See id. at 328-29.
34. See also Frieder Roessler et al., The Economic Structure of Renegotiation and Dispute Resolution in the WTO/GATT System (Feb. 5, 1998) (unpublished manuscript on file with authors).
35. International lawyers tend to assume the binding nature of international obligations as a matter of law because states have agreed to the treaty terms. Conversely, international relations scholars, particularly those associated with regime theory, begin the analysis of compliance from a perspective of power relations between states. Regime theorists employ economic analysis, most commonly game theory, and focus on power structures, pay-offs and rational choice analysis as a more intellectually coherent rationalization of compliance in the international setting. See Robert O. Keohane, International Relations and International Law: Two Optics, 38 HARV. INT'L L.J. 487, 496-99 (1997);
36. John K. Setear, An Iterative Perspective on Treaties: A Synthesis of International Theory and International Law, 37 HARV. INT'L L.J. 139 (1996).
37. Clearly, reputation alone is not a sole factor for compliance with international law. However, to the extent that negotiating strategies account for known state behavior (including capacity issues that might affect compliance levels) in regard to past treaty observance, reputational interests have some role in determinations of what kind of an international arrangement will best facilitate compliance from sovereign states. The very willingness to participate in a dispute settlement system established by a treaty has some effect on a state's reputation since participation is, itself, a type (and level) of treaty compliance. For different kinds of international dispute resolution institutions and some factors that affect a state's willingness to join, see Andrea Kupfer Schneider, Getting Along: The Evolution of Dispute Resolution Regimes in International Trade Organizations, 20 MICH. J. INT'L L. 697 (1999).
38. However, joining a particular institution does not suggest that states will comply with its rules. See Richard H. Steinberg, In the Shadow of Law or Power? Consensus-Based Bargaining and Outcomes in the GATT/WTO, _ INT'L ORG. _ (forthcoming Spring 2002).
39. U.S.C. §§ 2242, 2411-2420 (2000). Of course, this is not to say that intellectual property treaties were only enforced by threats of unilateral action. Because a majority of the developed world already shared similar intellectual property standards, it is safe to say that most countries that were bound by these treaties did comply with the principal treaty obligations. As Professor Henkin notes, "almost all nations observe almost all principles of international law and almost all of their obligations almost all of the time." See HENKIN, supra note 14, at 47. See also Harold Koh, Why Do Nations Obey International Law?, 106 YALE L.J. 2599, 2603 (1997) (noting that "like most laws, international rules are rarely enforced, but usually obeyed"). From a developing country perspective, Section 301 actions were controversial precisely because they were considered extra-legal and at best, a unilateralist abuse of power by the United States to exact compliance with United States expectations - expectations that at times had no basis in any legal agreement. In other words, the use of Section 301 was not limited to the countries that had a treaty-based obligation to the United States. Even where such an obligation existed, Section 301 was a means to enforce the agreement on United States terms. Section 301 is still part of an array of formal and informal mechanisms to secure compliance with United States expectations with regard to matters of international economic regulation. The legitimacy of Section 301 with regard to matters under the jurisdiction of the WTO was challenged by the European Community. See WTO Panel Report on United States - Sections 301-310 of the Trade Act of 1974, Dec. 22, 1999, WTO Doc. WT/DS152/R. The WTO Panel upheld Section 301, so long as its use would be consistent with the WTO dispute settlement process. Id.
40. The many battles with China over copyright piracy, notwithstanding bilateral agreements that go back almost a century, is a prime example of the inefficacy of unilateralism as the primary strategy for enforcement of intellectual property rights. See generally Leaffer, supra note 9, at 288-91 (discussing United States unilateral strategies to deal with piracy). See also id. at 297 (noting the danger of unilateralism to long-term United States interests); Alford, supra note 12. See also William P. Alford, Making the World Safe for What? Intellectual Property Rights, Human Rights and Foreign Economic Policy in the Post-European Cold War World, 29 N.Y.U. J. INT'L L. POL. 135 (1997).
41. See supra note 14. Indeed, this compliance problem, and the unilateral strategies that were developed to deal with it such as those taken pursuant to Section 301, played a prominent role in the decision to create a new dispute settlement process under the WTO. For a review of some of the leading works on the compliance issue in international law, see Koh, supra note 15 (reviewing ABRAM CHAYES & ANTONIA CHAYES, THE NEW SOVEREIGNTY: COMPLIANCE WITH INTERNATIONAL REGULATORY AGREEMENTS (1995) and THOMAS M. FRANCK, FAIRNESS IN INTERNATIONAL LAW AND INSTITUTIONS (1995)). See also Damrosch, supra note 14; George Downs et al., The Transformative Model of International Regime Design, 38 COLUM. J. TRANSNAT'L L. 465 (2000). For a specific consideration of compliance in the context of the TRIPs Agreement,
42. see Kal Raustiala, Compliance and Effectiveness in International Regulatory Cooperation, 32 CASE W. RES. J. INT'L L. 387 (2000).
43. The World Intellectual Property Organization (WIPO) has been the primary institution responsible for the international coordination, regulation and administration of intellectual property rights. First designed in 1884 as an International Bureau to administer the Paris Convention, the modern organization was established on July 14, 1967 to "promote the protection of intellectual property throughout the world through cooperation among States and, where appropriate, in collaboration with any other international organization." See Convention Establishing the World Intellectual Property Organization, signed at Stockholm on July 14, 1967, amended Sept. 28, 1979, art 3, 21 U.S.T. 1749, 828 U.N.I.T.S. 3 [hereinafter WIPO Convention]. Its functions include the development of measures designed to facilitate the efficient protection of intellectual property throughout the world and to harmonize national legislation; to encourage the conclusion of international agreements designed to promote the protection of intellectual property; to maintain services (such as registration) to facilitate international protection of intellectual property; to offer assistance to States requesting technical/legal assistance regarding intellectual property matters; and to administer the Paris and the Berne Unions and any other Unions related to these two principal Unions. Id. art. 4. Today WIPO administers twenty-three international treaties on intellectual property. Six of these are copyright treaties. The majority of countries in the world are members of WIPO (179 members as of April 1, 2002) although members are not necessarily parties to the treaties administered by WIPO. In 1996, WIPO signed an agreement with the WTO that established a cooperative relationship with respect to administrative matters regarding the TRIPs Agreement, and with particular emphasis on the exchange of laws and regulations of WTO Member states, and legal and technical assistance to WTO Member states that may not be members of WIPO. See Agreement between the World Intellectual Property Organization and the World Trade Organization, Dec. 22, 1995, arts. 2, 4, 35 I.L.M. 754 (1996).
44. See Michael P. Ryan, The Function-Specific and Linkage-Bargain Diplomacy of International Intellectual Property Lawmaking, 19 U. PA. J. INT'L ECON. L. 535 (1998) (describing the success of the TRIPs negotiations in terms of linkages between different priorities of negotiating countries, and different expert groups with identified technical skills responsible for coordinating interests in order to arrive at a bargain acceptable to all).
45. See Berne Convention, supra note 8, art. 33; Paris Convention, supra note 8, art. 28.
46. The insignificance of the ICJ to intellectual property may reflect the fact that until quite recently intellectual property has not generally been considered part of "public" international law which deals with interactions between states rather than the private regulation of transnational economic activity. Today, the distinction between public and private international law has all but disappeared as non-state actors and economic transactions have occupied central positions in transborder interactions. Indeed, the "deep linking" of the "public" (such as human rights, environmental law, and public health) to the "private" (trade regulation, international transactions, and intellectual property) has made it both impossible and imprudent to sustain any meaningful dichotomy between these two varieties of international interaction. Evidence of such linking is profoundly manifest in the "trade and . . . " literature, and in the oft noted artificiality of geographic boundaries occasioned by rapid communications technology. The Internet jurisdiction cases are paradigmatic of this seamlessness of international behavior, particularly as domestic courts around the world increasingly assert jurisdiction over foreign plaintiffs. See, e.g., La Ligue Contre le Racisme et L'antisemitisme et al. v. Yahoo!, Inc., French High Court TGI Tribunal de Grande Instance, Paris France (2000); Yahoo!, Inc. v. La Ligue Contre le Racisme et L'Antisemitisme, 169 F. Supp. 2d 1181 (N.D. Cal. 2001) (granting summary judgment against enforcement in the United States of the French Court decision); Gutnick v. Dow Jones & Co., Inc., Aug. 28, 2001, V.S.C. 305 (unreported decision of the Supreme Court of Victoria, Australia) (asserting jurisdiction over a United States company for alleged defamatory statements contained in an on-line publication). In addition to the perception that intellectual property was a matter for private international law, the lack of submission of intellectual property disputes to the ICJ also reflected the general refusal of states to submit disputes to the Court. In the first fifty years of the Court's existence (1946-1996), only about 100 cases had been submitted to the court. See OSCAR SCHACTER, INTERNATIONAL LAW IN THEORY AND PRACTICE 218 (1991) (suggesting reasons for state reluctance to adjudicate disputes). The forerunner institution to the ICJ, the Permanent Court of International Justice (PCIJ), had sixty-six cases submitted to its jurisdiction between 1922-1945. But as one leading scholar has noted about the PCIJ: From its experimental beginnings it established the point that a permanent international judicial organ is both feasible and necessary, even without going so far as to be accompanied by any true compulsory jurisdiction. The real measure of its worth is not to be found in the number of cases decided by it . . . or in its contribution to the development and clarification of the law. . . . [I]t was never seriously suggested that the Court is unnecessary, or that it had failed in its primary mission, or that its organization was fundamentally faulty. . . . [The Court's] dispassionate and unhurried consideration of the issues brought before it . . . the fact that judicial pronouncements were endowed with strong moral authority in addition to their formal finality . . . provided the foundations for the reconstituted system of international adjudication. . . .
47. SHABTAI ROSENNE, THE WORLD COURT AND HOW IT WORKS 25-26 (1973). In 1985, the United States withdrew its declaration of compulsory jurisdiction to the ICJ under Article 36(2) of the ICJ Statute, further eroding the credibility of the Court as an effective judicial organ for the international society. Nonetheless, Article 36(1) of the ICJ Statute serves as a possible basis for ICJ jurisdiction over copyright disputes arising from any of the copyright treaties. See Statute of the International Court of Justice, June 26, 1949, 59 Stat. 1055, T.S. No. 993, 3 Bevans 1179 [hereinafter ICJ Statute]. Article 36(1) confers jurisdiction on the ICJ over "all matters specially provided for in treaties. . . ." Id. art. 36(1). Thus, there is a strong argument that the provisions of the Berne Convention recognizing the jurisdiction of the ICJ in disputes concerning the interpretation or application of the Convention remain binding on members of the Berne Convention, notwithstanding the TRIPs Agreement. See Berne Convention, supra note 8, art. 33.
48. This might be explained on grounds that recourse to the ICJ did not offer much to a complaining state since there still was no effective means to effect compliance with a decision rendered by the Court. However, even this view is not entirely correct. The ICJ Statute provides that decisions of the Court are binding between the parties, and final without appeal. See ICJ Statute, supra note 21, arts. 59, 60. The U.N. Charter provides that where a party fails to comply with its obligations pursuant to a judgement of the Court, the other party can refer the matter to the Security Council. The Security Council may then "make recommendations or decide upon measures to be taken to give effect to the judgement." See U.N. Charter art. 94. In practice however, this mechanism has been rarely used.
49. See supra note 9.
50. For the leading overview of the accomplishments of the TRIPs Agreement, see Reichman, Universal Minimum Standards, supra note 2.
51. See Final Act Embodying the Results of the Uruguay Round of Multilateral Trade Negotiations - The Legal Texts 2-3 (GATT Secretariat ed., 1994). For some examples of works noting the importance of the WTO dispute settlement mechanism, see Judith H. Bello & Alan F. Holmer, Dispute Resolution in the New World Trade Organization: Concerns and Net Benefits, 28 INT'L LAW. 1095 (1994); Rochelle Cooper Dreyfuss & Andreas F. Lowenfeld, Two Achievements of the Uruguay Round: Putting TRIPS and Dispute Resolution Together, VA. J. INT'L L. 275 (1997).
52. See Final Act Embodying the Results of the Uruguay Round of Multilateral Trade Negotiations - The Legal Texts 2-3 (GATT Secretariat ed., 1994). For some examples of works noting the importance of the WTO dispute settlement mechanism, see Judith H. Bello & Alan F. Holmer, Dispute Resolution in the New World Trade Organization: Concerns and Net Benefits, 28 INT'L LAW. 1095 (1994); Rochelle Cooper Dreyfuss & Andreas F. Lowenfeld, Two Achievements of the Uruguay Round: Putting TRIPS and Dispute Resolution Together, VA. J. INT'L L. 275 (1997).
53. John H. Jackson, The WTO Dispute Settlement Understanding - Misunderstandings on the Nature of Legal Obligation, 91 AM. J. INT'L L. 60 (1997) (arguing that a panel decision is a binding obligation under international law).
54. As Professor Trachtman has stated, "dispute resolution is . . . the place where legislation becomes binding and effective." See Joel Trachtman, The Domain of WTO Dispute Resolution, 40 HARV. INT'L L.J. 333, 339 (1999).
55. Nineteenth century legal realists challenged the formalism that rules as enacted by the legislature were the only source of law, and that judges were simply passive mediums limited by the positive text of such rules. See in particular the compiled works of Justice Oliver Wendell Holmes in THE MIND AND FAITH OF JUSTICE HOLMES: HIS SPEECHES, ESSAYS, LETTERS AND JUDICIAL OPINIONS (Max Lerber ed., 1943). In the most notable of Holmes' work, THE COMMON LAW (Mark DeWolfe Howe ed., Harvard University Press 1963) (1881) the Legal Realist position was best summed up: The life of the law has not been logic; it has been experience. . . . The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed. Id. at 5. See also Benjamin Cardozo, THE NATURE OF THE JUDICIAL PROCESS (1921); Roscoe Pound, Law in Books and Law in Action, 44 AM. L. REV. 14 (1910).
56. Nineteenth century legal realists challenged the formalism that rules as enacted by the legislature were the only source of law, and that judges were simply passive mediums limited by the positive text of such rules. See in particular the compiled works of Justice Oliver Wendell Holmes in THE MIND AND FAITH OF JUSTICE HOLMES: HIS SPEECHES, ESSAYS, LETTERS AND JUDICIAL OPINIONS (Max Lerber ed., 1943). In the most notable of Holmes' work, THE COMMON LAW (Mark DeWolfe Howe ed., Harvard University Press 1963) (1881) the Legal Realist position was best summed up: The life of the law has not been logic; it has been experience. . . . The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed. Id. at 5. See also Benjamin Cardozo, THE NATURE OF THE JUDICIAL PROCESS (1921); Roscoe Pound, Law in Books and Law in Action, 44 AM. L. REV. 14 (1910).
57. Nineteenth century legal realists challenged the formalism that rules as enacted by the legislature were the only source of law, and that judges were simply passive mediums limited by the positive text of such rules. See in particular the compiled works of Justice Oliver Wendell Holmes in THE MIND AND FAITH OF JUSTICE HOLMES: HIS SPEECHES, ESSAYS, LETTERS AND JUDICIAL OPINIONS (Max Lerber ed., 1943). In the most notable of Holmes' work, THE COMMON LAW (Mark DeWolfe Howe ed., Harvard University Press 1963) (1881) the Legal Realist position was best summed up: The life of the law has not been logic; it has been experience. . . . The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed. Id. at 5. See also Benjamin Cardozo, THE NATURE OF THE JUDICIAL PROCESS (1921); Roscoe Pound, Law in Books and Law in Action, 44 AM. L. REV. 14 (1910).
58. In fact, developed countries repeatedly stated that the TRIPs Agreement was not intended to effect harmonization of norms. See Daniel Gervais, The TRIPS Agreement: Drafting History and Analysis 38 n.8 (1998) (citing document MTN.GNG/NG11/W/71). Several commentators on the TRIPs Agreement have noted the lack of complete agreement on certain matters governed by TRIPs, thus leading to some "grey areas" in the TRIPs Agreement. These include the scope of limitations to copyright rights, TRIPs Agreement, supra note 1, art. 13, the scope of patentable subject matter, id. art. 27, and even the standards for patentability. Professor Jerry Reichman has written extensively on the promises and perils of the TRIPs Agreement, with particular reference to the gaps or "grey areas" which leave room for interpretive maneuvering by states. See, e.g., J. H. Reichman, Securing Compliance with the TRIPS Agreement after U.S. v. India, 1 J. INT'L ECON. L 585, 594-96 (1998) [hereinafter Reichman, Securing Compliance];
59. J. H. Reichman, The TRIPS Agreement Comes of Age: Conflict or Cooperation with Developing Countries?, 32 CASE W. RES. J. INT'L L. 441, 457-58 (2000) (discussing gaps in the TRIPs Agreement) [hereinafter Reichman, TRIPS Agreement Comes of Age];
60. see also Ruth Okediji, Toward an International Fair Use Standard, 39 COLUM. J. TRANSNAT'L L. 75, 114-23 (2000) [hereinafter Okediji, Fair Use Standard] (discussing ambiguities in TRIPs Article 13);
61. Jane C. Ginsburg, Toward Supranational Copyright Law? The WTO Panel Decision and the "Three-Step Test" for Copyright Exceptions, 187 REVUE INTERNATIONALE DU DROIT D'AUTEUR 3 (2001) (comparing the Berne three-step test with the WTO Panel approach to TRIPs Article 13) [hereinafter Ginsburg, Supranational Copyright Law].
62. See TRIPs Agreement, supra note 1, art. 68.
63. Id. art. 63.2
64. Sovereignty is an axiomatic (if contested) principle of international law. Sovereignty in international law denotes the rights and attributes of political organization established over a geographical territory. Sovereignty and statehood have gone hand in hand since the Peace of Westphalia (1648) where the concept of the state was first introduced in international society. Generally, international law requires four characteristics for statehood. These are: 1) a defined territory; 2) a government; 3) a permanent population; and 4) the capacity to participate in diplomatic relations. Classic international law considered states exclusively as the basic subjects of international law, and sovereignty has been a core organizing principle of the discipline. Today, however, the concepts of sovereignty and statehood as requisites for participation in the international legal order have come under considerable question. The first significant moment in the challenge to the absolute of sovereignty occurred after World War II, when concerns about human rights prodded the discipline to eschew sovereignty claims and hold the state accountable for domestic abuses of its citizens. See generally Oscar Schachter, The Decline of the Nation State and Its Implications for International Law, 36 COLUM. J. TRANSNAT'L L. 7 (1997). Globalization and technological advances have further raised significant questions about the utility of sovereignty as an organizing principle of international relations. See Okediji, Copyright and Public Welfare, supra note 12, at 117 nn.2, 3, and references cited.
65. Sovereignty is an axiomatic (if contested) principle of international law. Sovereignty in international law denotes the rights and attributes of political organization established over a geographical territory. Sovereignty and statehood have gone hand in hand since the Peace of Westphalia (1648) where the concept of the state was first introduced in international society. Generally, international law requires four characteristics for statehood. These are: 1) a defined territory; 2) a government; 3) a permanent population; and 4) the capacity to participate in diplomatic relations. Classic international law considered states exclusively as the basic subjects of international law, and sovereignty has been a core organizing principle of the discipline. Today, however, the concepts of sovereignty and statehood as requisites for participation in the international legal order have come under considerable question. The first significant moment in the challenge to the absolute of sovereignty occurred after World War II, when concerns about human rights prodded the discipline to eschew sovereignty claims and hold the state accountable for domestic abuses of its citizens. See generally Oscar Schachter, The Decline of the Nation State and Its Implications for International Law, 36 COLUM. J. TRANSNAT'L L. 7 (1997). Globalization and technological advances have further raised significant questions about the utility of sovereignty as an organizing principle of international relations. See Okediji, Copyright and Public Welfare, supra note 12, at 117 nn.2, 3, and references cited.
66. Graeme Dinwoodie, The Integration of International and Domestic Intellectual Property Lawmaking, 23 COLUM.-VLA J.L. & ARTS 307 (2000) [hereinafter Dinwoodie, Integration of International] (noting the "conscious blending of domestic and international lawmaking").
67. Ginsburg, International Copyright, supra note 3 (discussing the combined effect of EU Directives and TRIPs provisions).
68. Id.
69. Professor Reichman has often referred to these unharmonized norms as "grey areas" or "wiggle room" in an otherwise firm set of obligations. See Reichman, Securing Compliance, supra note 28; Reichman, TRIPS Agreement Comes of Age, supra note 28; see also Reichman, From Free Riders to Fair Followers, supra note 9.
70. Professor Reichman has often referred to these unharmonized norms as "grey areas" or "wiggle room" in an otherwise firm set of obligations. See Reichman, Securing Compliance, supra note 28; Reichman, TRIPS Agreement Comes of Age, supra note 28; see also Reichman, From Free Riders to Fair Followers, supra note 9.
71. Professor Reichman has often referred to these unharmonized norms as "grey areas" or "wiggle room" in an otherwise firm set of obligations. See Reichman, Securing Compliance, supra note 28; Reichman, TRIPS Agreement Comes of Age, supra note 28; see also Reichman, From Free Riders to Fair Followers, supra note 9.
72. See Ginsburg, International Copyright, supra note 3; Ginsburg, Supranational Copyright Law, supra note 28; Dinwoodie, Integration of International, supra note 32. See also Graeme B. Dinwoodie, A New Copyright Order: Why National Courts Should Create Global Norms, 149 U. PA. L. REV. 469 (2000) (proposing a framework for the integration of domestic norms and international copyright lawmaking process) [hereinafter Dinwoodie, A New Copyright Order]; Graeme Dinwoodie, The Development and Incorporation of International Norms in the Formation of Copyright Law, 62 OHIO ST. L.J. 733 (2001) [hereinafter Dinwoodie, Development and Incorporation]. See also Okediji, Fair Use Standard, supra note 28; Okediji, Cartography, supra note 13.
73. See Ginsburg, International Copyright, supra note 3; Ginsburg, Supranational Copyright Law, supra note 28; Dinwoodie, Integration of International, supra note 32. See also Graeme B. Dinwoodie, A New Copyright Order: Why National Courts Should Create Global Norms, 149 U. PA. L. REV. 469 (2000) (proposing a framework for the integration of domestic norms and international copyright lawmaking process) [hereinafter Dinwoodie, A New Copyright Order]; Graeme Dinwoodie, The Development and Incorporation of International Norms in the Formation of Copyright Law, 62 OHIO ST. L.J. 733 (2001) [hereinafter Dinwoodie, Development and Incorporation]. See also Okediji, Fair Use Standard, supra note 28; Okediji, Cartography, supra note 13.
74. See Ginsburg, International Copyright, supra note 3; Ginsburg, Supranational Copyright Law, supra note 28; Dinwoodie, Integration of International, supra note 32. See also Graeme B. Dinwoodie, A New Copyright Order: Why National Courts Should Create Global Norms, 149 U. PA. L. REV. 469 (2000) (proposing a framework for the integration of domestic norms and international copyright lawmaking process) [hereinafter Dinwoodie, A New Copyright Order]; Graeme Dinwoodie, The Development and Incorporation of International Norms in the Formation of Copyright Law, 62 OHIO ST. L.J. 733 (2001) [hereinafter Dinwoodie, Development and Incorporation]. See also Okediji, Fair Use Standard, supra note 28; Okediji, Cartography, supra note 13.
75. See Ginsburg, International Copyright, supra note 3; Ginsburg, Supranational Copyright Law, supra note 28; Dinwoodie, Integration of International, supra note 32. See also Graeme B. Dinwoodie, A New Copyright Order: Why National Courts Should Create Global Norms, 149 U. PA. L. REV. 469 (2000) (proposing a framework for the integration of domestic norms and international copyright lawmaking process) [hereinafter Dinwoodie, A New Copyright Order]; Graeme Dinwoodie, The Development and Incorporation of International Norms in the Formation of Copyright Law, 62 OHIO ST. L.J. 733 (2001) [hereinafter Dinwoodie, Development and Incorporation]. See also Okediji, Fair Use Standard, supra note 28; Okediji, Cartography, supra note 13.
76. See Ginsburg, International Copyright, supra note 3; Ginsburg, Supranational Copyright Law, supra note 28; Dinwoodie, Integration of International, supra note 32. See also Graeme B. Dinwoodie, A New Copyright Order: Why National Courts Should Create Global Norms, 149 U. PA. L. REV. 469 (2000) (proposing a framework for the integration of domestic norms and international copyright lawmaking process) [hereinafter Dinwoodie, A New Copyright Order]; Graeme Dinwoodie, The Development and Incorporation of International Norms in the Formation of Copyright Law, 62 OHIO ST. L.J. 733 (2001) [hereinafter Dinwoodie, Development and Incorporation]. See also Okediji, Fair Use Standard, supra note 28; Okediji, Cartography, supra note 13.
77. See Ginsburg, International Copyright, supra note 3; Ginsburg, Supranational Copyright Law, supra note 28; Dinwoodie, Integration of International, supra note 32. See also Graeme B. Dinwoodie, A New Copyright Order: Why National Courts Should Create Global Norms, 149 U. PA. L. REV. 469 (2000) (proposing a framework for the integration of domestic norms and international copyright lawmaking process) [hereinafter Dinwoodie, A New Copyright Order]; Graeme Dinwoodie, The Development and Incorporation of International Norms in the Formation of Copyright Law, 62 OHIO ST. L.J. 733 (2001) [hereinafter Dinwoodie, Development and Incorporation]. See also Okediji, Fair Use Standard, supra note 28; Okediji, Cartography, supra note 13.
78. It is true that the TRIPs Agreement required minimal changes to United States law, but nevertheless there were changes that had to be made. See Uruguay Round Agreements Act, Pub. L. No. 103-465, 108 Stat. 4809 (1995). Some of these changes included changes to the process of section 301 actions. See Statement of Administrative Action, reprinted in Uruguay Round Agreements, Texts of Agreements, Implementing Bill, Statement of Administrative Action, and Required Supporting Statements, 103d Cong., H.R. Doc. No. 103-316 (1994), reprinted in 1994 U.S.C.C.A.N. 4040.
79. WTO Panel Report on United States - Section 110(5) of the U.S. Copyright Act, June 15, 2000, WTO Doc. WT/DS160/R [hereinafter United States -Section 110(5)].
80. Today, noted subjects of international law include international institutions, non-governmental organizations, and individual citizens. In particular, international organizations play a vital role in setting and consolidating international norms through a variety of activities including standard setting, alternative dispute settlement, policing state observance of treaties especially in the environmental and human rights arenas. For analyses of the role and importance of non-state actors in the international realm, see LENG-CHU CHEN, AN INTRODUCTION TO CONTEMPORARY INTERNATIONAL LAW 67-74 (1989); Peter J. Spiro, New Global Potentates: Nongovernmental Organizations and the "Unregulated" Marketplace, 18 CARDOZO L. REV. 957 (1996); Steve Charnovitz, Two Centuries of Participation: NGO's and International Governance, 18 MICH. J. INT'L L. 183 (1997); Peter J. Spiro, New Players on the International Stage, 2 HOFSTRA L. & POL'Y SYMP. 19 (1998); Daniel C. Esty, Non-Governmental Organizations at the World Trade Organization: Cooperation, Competition, or Exclusion, 1 J. INT'L ECON. L. 123 (1998).
81. Today, noted subjects of international law include international institutions, non-governmental organizations, and individual citizens. In particular, international organizations play a vital role in setting and consolidating international norms through a variety of activities including standard setting, alternative dispute settlement, policing state observance of treaties especially in the environmental and human rights arenas. For analyses of the role and importance of non-state actors in the international realm, see LENG-CHU CHEN, AN INTRODUCTION TO CONTEMPORARY INTERNATIONAL LAW 67-74 (1989); Peter J. Spiro, New Global Potentates: Nongovernmental Organizations and the "Unregulated" Marketplace, 18 CARDOZO L. REV. 957 (1996); Steve Charnovitz, Two Centuries of Participation: NGO's and International Governance, 18 MICH. J. INT'L L. 183 (1997); Peter J. Spiro, New Players on the International Stage, 2 HOFSTRA L. & POL'Y SYMP. 19 (1998); Daniel C. Esty, Non-Governmental Organizations at the World Trade Organization: Cooperation, Competition, or Exclusion, 1 J. INT'L ECON. L. 123 (1998).
82. Today, noted subjects of international law include international institutions, non-governmental organizations, and individual citizens. In particular, international organizations play a vital role in setting and consolidating international norms through a variety of activities including standard setting, alternative dispute settlement, policing state observance of treaties especially in the environmental and human rights arenas. For analyses of the role and importance of non-state actors in the international realm, see LENG-CHU CHEN, AN INTRODUCTION TO CONTEMPORARY INTERNATIONAL LAW 67-74 (1989); Peter J. Spiro, New Global Potentates: Nongovernmental Organizations and the "Unregulated" Marketplace, 18 CARDOZO L. REV. 957 (1996); Steve Charnovitz, Two Centuries of Participation: NGO's and International Governance, 18 MICH. J. INT'L L. 183 (1997); Peter J. Spiro, New Players on the International Stage, 2 HOFSTRA L. & POL'Y SYMP. 19 (1998); Daniel C. Esty, Non-Governmental Organizations at the World Trade Organization: Cooperation, Competition, or Exclusion, 1 J. INT'L ECON. L. 123 (1998).
83. Today, noted subjects of international law include international institutions, non-governmental organizations, and individual citizens. In particular, international organizations play a vital role in setting and consolidating international norms through a variety of activities including standard setting, alternative dispute settlement, policing state observance of treaties especially in the environmental and human rights arenas. For analyses of the role and importance of non-state actors in the international realm, see LENG-CHU CHEN, AN INTRODUCTION TO CONTEMPORARY INTERNATIONAL LAW 67-74 (1989); Peter J. Spiro, New Global Potentates: Nongovernmental Organizations and the "Unregulated" Marketplace, 18 CARDOZO L. REV. 957 (1996); Steve Charnovitz, Two Centuries of Participation: NGO's and International Governance, 18 MICH. J. INT'L L. 183 (1997); Peter J. Spiro, New Players on the International Stage, 2 HOFSTRA L. & POL'Y SYMP. 19 (1998); Daniel C. Esty, Non-Governmental Organizations at the World Trade Organization: Cooperation, Competition, or Exclusion, 1 J. INT'L ECON. L. 123 (1998).
84. Today, noted subjects of international law include international institutions, non-governmental organizations, and individual citizens. In particular, international organizations play a vital role in setting and consolidating international norms through a variety of activities including standard setting, alternative dispute settlement, policing state observance of treaties especially in the environmental and human rights arenas. For analyses of the role and importance of non-state actors in the international realm, see LENG-CHU CHEN, AN INTRODUCTION TO CONTEMPORARY INTERNATIONAL LAW 67-74 (1989); Peter J. Spiro, New Global Potentates: Nongovernmental Organizations and the "Unregulated" Marketplace, 18 CARDOZO L. REV. 957 (1996); Steve Charnovitz, Two Centuries of Participation: NGO's and International Governance, 18 MICH. J. INT'L L. 183 (1997); Peter J. Spiro, New Players on the International Stage, 2 HOFSTRA L. & POL'Y SYMP. 19 (1998); Daniel C. Esty, Non-Governmental Organizations at the World Trade Organization: Cooperation, Competition, or Exclusion, 1 J. INT'L ECON. L. 123 (1998).
85. See Jane C. Ginsburg, Berne Without Borders: Geographic Indiscretion and Digital Communications, Pub. Law & Legal Theory Working Paper Group, Paper No. 01-30 (2001) [hereinafter Ginsburg, Berne Without Borders] (discussing the role and challenges of the historic deference to geographic borders in the Berne Convention).
86. See Okediji, Copyright and Public Welfare, supra note 12.
87. See id. See also Dinwoodie, A New Copyright Order, supra note 36, at 489-94 (noting the limitations of classic public international law for the needs and challenges of modern copyright); Ginsburg, Berne Without Borders, supra note 40 (discussing some of the challenges of applying extant rules in a digital economy for protection of copyright works).
88. See id. See also Dinwoodie, A New Copyright Order, supra note 36, at 489-94 (noting the limitations of classic public international law for the needs and challenges of modern copyright); Ginsburg, Berne Without Borders, supra note 40 (discussing some of the challenges of applying extant rules in a digital economy for protection of copyright works).
89. See ICJ Statute, supra note 21, art. 38. See also RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE UNITED STATES § 102 (1987) [hereinafter RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW].
90. The Vienna Convention defines a treaty as "an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation." See Vienna Convention on the Law of Treaties, opened for signature May 23, 1969, art. 2, 1155 U.N.T.S. 331 [hereinafter Vienna Convention]. Article 38(1)(a) of the ICJ Statute requires first, application of "international conventions, whether general or particular, establishing rules expressly recognized by the contesting states. . . ." ICJ Statute, supra note 21, art. 38(1)(a). The precedence of treaties over other sources of international law is shared by most international law scholars. According to a leading scholar in the discipline: The rights and duties of States are determined in the first instance, by their agreement as expressed in treaties. . . . When a controversy arises between two or more States with regard to a matter regulated by treaty, it is natural that the parties should invoke and that the adjudicating agency should apply, in the first instance, the provisions of the treaty in question. Like a contract between individuals, a treaty between States constitutes the law between them. 1 HERSCH LAUTERPACHT, INTERNATIONAL LAW: COLLECTED PAPERS 86-87 (1970).
91. See Dinwoodie, A New Copyright Order, supra note 36, at 492-94 (criticizing the slow, unwieldy process of international copyright lawmaking through treaties, and noting its inherent shortcomings in responding to new and complex issues). Professor Dinwoodie's critique of the classic international lawmaking model stems primarily from the requirement that a rule that is binding to a state is one to which the state has consented. This is a well established principle of international law, particularly with respect to obligations arising from treaties. As Professor Dinwoodie notes, treaties have been the exclusive means of international copyright lawmaking. Id. at 494-95. In theory, the consent requirement is an unavoidable outflow of the sovereignty of states. See J.L. BRIERLY, THE BASIS OF OBLIGATION IN INTERNATIONAL LAW 3, 18-30 (1928).
92. See Dinwoodie, A New Copyright Order, supra note 36, at 492-94 (criticizing the slow, unwieldy process of international copyright lawmaking through treaties, and noting its inherent shortcomings in responding to new and complex issues). Professor Dinwoodie's critique of the classic international lawmaking model stems primarily from the requirement that a rule that is binding to a state is one to which the state has consented. This is a well established principle of international law, particularly with respect to obligations arising from treaties. As Professor Dinwoodie notes, treaties have been the exclusive means of international copyright lawmaking. Id. at 494-95. In theory, the consent requirement is an unavoidable outflow of the sovereignty of states. See J.L. BRIERLY, THE BASIS OF OBLIGATION IN INTERNATIONAL LAW 3, 18-30 (1928).
93. There are rules of international law that are binding on states even in the absence of their explicit acceptance. Some of these rules are derived from general state practice that, over time and with repeated usage, has achieved the status of a binding norm or principle of international behavior. A customary rule of international law may be derived from a treaty provision, or may exist independently without ever being codified. Where a treaty term expresses or codifies customary international law, the term may be applicable even to states that have not ratified the treaty. According to the ICJ, a practice or custom need not be accepted by all states to be considered part of the general corpus of international law. However, the proposed rule must "be of a fundamentally norm-creating character" that could be considered as establishing a basis for a general rule of law. Further, even if the rule has not been practiced for a considerable length of time, it must have "a very widespread and representative participation" by states. See North Sea Continental Shelf Cases, 1969 I.C.J. 3; The Paquete Habana, 175 U.S. 677, 686 (1900) ("By ancient usage among civilized nations, beginning centuries ago, and gradually ripening into a rule of international law, coast fishing vessels, pursuing their vocation of catching and bringing in fresh fish, have been recognized as exempt, with their cargoes and crews, from capture as prize of war."). The Paquete Habana Court stated that "International law is part of our law. . . . [W]here there is no treaty . . ., resort must be had to the customs and usages of civilized nations. . . ." Id. at 700. For a recent critique of the Supreme Court's decision in The Paquete Habana, see Jack L. Goldsmith & Eric A. Posner, Understanding the Resemblance Between Modern and Traditional Customary International Law, 40 VA. J. INT'L L. 639 (2000).
94. See LAUTERPACHT, supra note 44, at 61-62; HANS KELSEN, PRINCIPLES OF INTERNATIONAL LAW 450-52 (Robert Tucker ed., 2d ed. 1966) (emphasizing state behavior as the source of custom). See also Michael Akehurst, Custom as a Source of International Law, 47 BRIT. Y.B. INT'L L. 1, 39-42 (1974-1975) (pointing out that requiring actual state practice will encourage conflict). See RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW, supra note 43, §102 cmt. j. The ICJ Statute provides that the Court shall apply "international custom, as evidence of a general practice accepted as law. . . ." ICJ Statute, supra note 21, art. 38(1)(b).
95. See LAUTERPACHT, supra note 44, at 61-62; HANS KELSEN, PRINCIPLES OF INTERNATIONAL LAW 450-52 (Robert Tucker ed., 2d ed. 1966) (emphasizing state behavior as the source of custom). See also Michael Akehurst, Custom as a Source of International Law, 47 BRIT. Y.B. INT'L L. 1, 39-42 (1974-1975) (pointing out that requiring actual state practice will encourage conflict). See RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW, supra note 43, §102 cmt. j. The ICJ Statute provides that the Court shall apply "international custom, as evidence of a general practice accepted as law. . . ." ICJ Statute, supra note 21, art. 38(1)(b).
96. See LAUTERPACHT, supra note 44, at 61-62; HANS KELSEN, PRINCIPLES OF INTERNATIONAL LAW 450-52 (Robert Tucker ed., 2d ed. 1966) (emphasizing state behavior as the source of custom). See also Michael Akehurst, Custom as a Source of International Law, 47 BRIT. Y.B. INT'L L. 1, 39-42 (1974-1975) (pointing out that requiring actual state practice will encourage conflict). See RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW, supra note 43, §102 cmt. j. The ICJ Statute provides that the Court shall apply "international custom, as evidence of a general practice accepted as law. . . ." ICJ Statute, supra note 21, art. 38(1)(b).
97. See LAUTERPACHT, supra note 44, at 61-62; HANS KELSEN, PRINCIPLES OF INTERNATIONAL LAW 450-52 (Robert Tucker ed., 2d ed. 1966) (emphasizing state behavior as the source of custom). See also Michael Akehurst, Custom as a Source of International Law, 47 BRIT. Y.B. INT'L L. 1, 39-42 (1974-1975) (pointing out that requiring actual state practice will encourage conflict). See RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW, supra note 43, §102 cmt. j. The ICJ Statute provides that the Court shall apply "international custom, as evidence of a general practice accepted as law. . . ." ICJ Statute, supra note 21, art. 38(1)(b).
98. th ed. 1992); Ronald St. John Macdonald, Fundamental Norms in Contemporary International Law, 25 CAN. Y.B. INT'L L. 115, 131 (1987); RESTATEMENT (THIRD) FOREIGN RELATIONS LAW, SUPRA note 43, § 102 cmts. d, k. See also Vienna Convention, supra note 44, art. 53.
99. th ed. 1992); Ronald St. John Macdonald, Fundamental Norms in Contemporary International Law, 25 CAN. Y.B. INT'L L. 115, 131 (1987); RESTATEMENT (THIRD) FOREIGN RELATIONS LAW, SUPRA note 43, § 102 cmts. d, k. See also Vienna Convention, supra note 44, art. 53.
100. th ed. 1992); Ronald St. John Macdonald, Fundamental Norms in Contemporary International Law, 25 CAN. Y.B. INT'L L. 115, 131 (1987); RESTATEMENT (THIRD) FOREIGN RELATIONS LAW, SUPRA note 43, § 102 cmts. d, k. See also Vienna Convention, supra note 44, art. 53.
101. LAUTERPACHT, supra note 44, at 234-35.
102. For the complex and interlocking relationship between treaties and customary international law, see OSCAR SCHACTER, INTERNATIONAL LAW IN THEORY AND PRACTICE 66-72 (1991).
103. This is the work of the International Law Commission. The Commission was established by the U.N. General Assembly to "promote the progressive development of international law and its codification." See U.N. Charter art. 13(1); Statute of the International Law Commission art. 1(1). The Hague Conference fulfils a similar role with respect to the development and codification of rules of private international law. See Statute of the Hague Conference on Private International Law, July 15, 1955, art. 1.
104. Subject to protest by the state during the development of the custom. This principle was recognized by the Permanent Court of International Justice in The Case of the S.S. Lotus (France v. Turkey), 1927 P.C.I.J. (Ser. A.) No. 10, and by the ICJ in the Fisheries Jurisdiction Case (U.K. v. Iceland), 1974 I.C.J. 47, 58, 161 (July 25). See also RESTATEMENT (THIRD) FOREIGN RELATIONS LAW, supra note 43, §102 cmt. d, which provides that "in principle a dissenting state which indicates its dissent from a practice while the law is still in a state of development is not bound by that rule of law even after it matures." See generally Ted L. Stein, The Approach of the Different Drummer: The Principle of the Persistent Objector in International Law, 26 HARV. INT'L L.J. 457 (1985); Jonathan I. Charney, The Persistent Objector Rule and the Development of Customary International Law, 56 BRIT. Y.B. I.L. 1-24 (1985).
105. Subject to protest by the state during the development of the custom. This principle was recognized by the Permanent Court of International Justice in The Case of the S.S. Lotus (France v. Turkey), 1927 P.C.I.J. (Ser. A.) No. 10, and by the ICJ in the Fisheries Jurisdiction Case (U.K. v. Iceland), 1974 I.C.J. 47, 58, 161 (July 25). See also RESTATEMENT (THIRD) FOREIGN RELATIONS LAW, supra note 43, §102 cmt. d, which provides that "in principle a dissenting state which indicates its dissent from a practice while the law is still in a state of development is not bound by that rule of law even after it matures." See generally Ted L. Stein, The Approach of the Different Drummer: The Principle of the Persistent Objector in International Law, 26 HARV. INT'L L.J. 457 (1985); Jonathan I. Charney, The Persistent Objector Rule and the Development of Customary International Law, 56 BRIT. Y.B. I.L. 1-24 (1985).
106. Subject to protest by the state during the development of the custom. This principle was recognized by the Permanent Court of International Justice in The Case of the S.S. Lotus (France v. Turkey), 1927 P.C.I.J. (Ser. A.) No. 10, and by the ICJ in the Fisheries Jurisdiction Case (U.K. v. Iceland), 1974 I.C.J. 47, 58, 161 (July 25). See also RESTATEMENT (THIRD) FOREIGN RELATIONS LAW, supra note 43, §102 cmt. d, which provides that "in principle a dissenting state which indicates its dissent from a practice while the law is still in a state of development is not bound by that rule of law even after it matures." See generally Ted L. Stein, The Approach of the Different Drummer: The Principle of the Persistent Objector in International Law, 26 HARV. INT'L L.J. 457 (1985); Jonathan I. Charney, The Persistent Objector Rule and the Development of Customary International Law, 56 BRIT. Y.B. I.L. 1-24 (1985).
107. Vienna Convention, supra note 44, art. 31(3)(b).
108. Id. art. 31(3)(c).
109. World Intellectual Property Organization: Copyright Treaty, Dec. 20, 1996, 35 I.L.M. 65.
110. World Intellectual Property Organization: Performances and Phonograms Treaty, Dec. 20, 1996, 36 I.L.M. 65.
111. See Okediji, Fair Use Standard, supra note 28, at 152-53 (concluding that the Agreed Statements to the WCT, when examined as evidence of subsequent practice between members of the Berne Convention and the TRIPs Agreement, might provide a basis for a customary international law of fair use). For an analysis of how the Berne Convention might be interpreted in light of TRIPs, see Neil Netanel, The Next Round: The Impact of the WIPO Copyright Treaty on TRIPS Dispute Settlement, 37 VA. J. INT'L L. 441 (1997).
112. See Okediji, Fair Use Standard, supra note 28, at 152-53 (concluding that the Agreed Statements to the WCT, when examined as evidence of subsequent practice between members of the Berne Convention and the TRIPs Agreement, might provide a basis for a customary international law of fair use). For an analysis of how the Berne Convention might be interpreted in light of TRIPs, see Neil Netanel, The Next Round: The Impact of the WIPO Copyright Treaty on TRIPS Dispute Settlement, 37 VA. J. INT'L L. 441 (1997).
113. See Diplomatic Conference on Certain Copyright and Neighboring Rights Questions: Agreed Statements Concerning the WIPO Copyright Treaty, adopted Dec. 20, 1996, WIPO Doc. CRNR/DC/96.
114. See Netanel, supra note 57, at 332. But see Okediji, supra note 28, at 153-54 (stating that the authority of the Agreed Statements as evidence of subsequent practice for purposes of recognizing an international fair use doctrine is "not incontrovertible").
115. See Netanel, supra note 57, at 332. But see Okediji, supra note 28, at 153-54 (stating that the authority of the Agreed Statements as evidence of subsequent practice for purposes of recognizing an international fair use doctrine is "not incontrovertible").
116. Roessler et al., supra note 14 (discussing the role of domestic pressure in encouraging violation of the trade agreements).
117. WTO Panel Report on United States - Import Prohibition of Certain Shrimp and Shrimp products, May 15, 1998, WTO Doc. No. WT/DS58/R; WTO Appellate Body Report on United States - Import Prohibition of Certain Shrimp and Shrimp Products, Oct. 12, 1998, WTO Doc. No. WT/DS58/AB/ R (holding that United States import ban to protect endangered sea turtles was a GATT violation). The United States did not remove the ban completely, a response that some commentators argue was consistent with the Appellate Body's rationale. See Gregory Shaffer, United States - Import Prohibition of Certain Shrimp and Shrimp Products, 93 AM. J. INT'L L. 507 (1999). However, trading partners complained. See Asians Contest U.S. Shrimp/Turtle Rule, Call for Complete Lifting of Import Ban, 16 Int'l Trade Rep. (BNA) 1250 (July 28, 1999). For a framework distinguishing implementation, compliance and effectiveness, see Edith Brown Weiss & Harold K. Jacobson, A Framework for Analysis, in ENGAGING COUNTRIES: STRENGTHENING COMPLIANCE WITH INTERNATIONAL ENVIRONMENTAL ACCORDS 1 (Edith Brown Weiss & Harold K. Jacobson eds., 1998).
118. WTO Panel Report on United States - Import Prohibition of Certain Shrimp and Shrimp products, May 15, 1998, WTO Doc. No. WT/DS58/R; WTO Appellate Body Report on United States - Import Prohibition of Certain Shrimp and Shrimp Products, Oct. 12, 1998, WTO Doc. No. WT/DS58/AB/ R (holding that United States import ban to protect endangered sea turtles was a GATT violation). The United States did not remove the ban completely, a response that some commentators argue was consistent with the Appellate Body's rationale. See Gregory Shaffer, United States - Import Prohibition of Certain Shrimp and Shrimp Products, 93 AM. J. INT'L L. 507 (1999). However, trading partners complained. See Asians Contest U.S. Shrimp/Turtle Rule, Call for Complete Lifting of Import Ban, 16 Int'l Trade Rep. (BNA) 1250 (July 28, 1999). For a framework distinguishing implementation, compliance and effectiveness, see Edith Brown Weiss & Harold K. Jacobson, A Framework for Analysis, in ENGAGING COUNTRIES: STRENGTHENING COMPLIANCE WITH INTERNATIONAL ENVIRONMENTAL ACCORDS 1 (Edith Brown Weiss & Harold K. Jacobson eds., 1998).
119. WTO Panel Report on United States - Import Prohibition of Certain Shrimp and Shrimp products, May 15, 1998, WTO Doc. No. WT/DS58/R; WTO Appellate Body Report on United States - Import Prohibition of Certain Shrimp and Shrimp Products, Oct. 12, 1998, WTO Doc. No. WT/DS58/AB/ R (holding that United States import ban to protect endangered sea turtles was a GATT violation). The United States did not remove the ban completely, a response that some commentators argue was consistent with the Appellate Body's rationale. See Gregory Shaffer, United States - Import Prohibition of Certain Shrimp and Shrimp Products, 93 AM. J. INT'L L. 507 (1999). However, trading partners complained. See Asians Contest U.S. Shrimp/Turtle Rule, Call for Complete Lifting of Import Ban, 16 Int'l Trade Rep. (BNA) 1250 (July 28, 1999). For a framework distinguishing implementation, compliance and effectiveness, see Edith Brown Weiss & Harold K. Jacobson, A Framework for Analysis, in ENGAGING COUNTRIES: STRENGTHENING COMPLIANCE WITH INTERNATIONAL ENVIRONMENTAL ACCORDS 1 (Edith Brown Weiss & Harold K. Jacobson eds., 1998).
120. Vienna Convention, supra note 44, art. 2(1)(a).
121. ICJ Statute, supra note 21.
122. Vienna Convention, supra note 44.
123. See DSU, supra note 6, art. 3(2), which provides that the dispute settlement system of the WTO "serves to preserve the rights and obligations of Members under the covered agreements, and to clarify the existing provisions of those agreements in accordance with customary rules of interpretation of public international law."
124. See Trachtman, supra note 26, at 342.
125. Article 11 provides, inter alia, that a panel should make "an objective assessment of the facts of the case and the applicability of and conformity with the relevant covered agreements. . . ." DSU, supra note 6, art. 11.
126. Id. art. 7.
127. Id. art. 3(2).
128. See David Palmeter & Petros C. Mavroidis, The WTO Legal System: Sources of Law, 92 Am. J. Int'l L. 398 (1998).
129. The Appellate Body has interpreted the Article 3(2) phrase "in accordance with customary rules of public international law" to mean Articles 31-33 of the Vienna Convention. See, e.g., WTO Appellate Body Report on United States - Standards for Reformulated and Conventional Gasoline, May 20, 1996, WTO Doc. AB-1996-1, WT/DS2/AB/R, 35 I.L.M. 603.
130. See, e.g., WTO Panel Report on Canada - Term of Patent Protection, May 5, 2000, WTO Doc. WT/DS170/R, ¶¶ 6.12-6.13; WTO Panel Report on Canada - Patent Protection of Pharmaceutical Products, Mar.17, 2000, WTO Doc. WT/DS114/R, ¶¶ 4.16-4.17 (applying Articles 31 and 32 of the Vienna Convention to interpret TRIPs Article 27.1); WTO Appellate Body Report on India - Patent Protection for Pharmaceutical and Agricultural Chemical Products, Dec. 19, 1997, WTO Doc. WT/DS50/AB/R, ¶¶ 43-45 [hereinafter India - Patent Protection for Pharmaceutical]. See also WTO Appellate Body Report on United States - Standards for Reformulated and Conventional Gasoline, Apr. 29, 1996, WTO Doc. WT/DS2/AB/R at 15.
131. Trachtman, supra note 26, at 343 (agreeing with this conclusion with respect to the TRIPs Agreement).
132. TRIPs Agreement, supra note 1, art. 2. See also Trachtman, supra note 26.
133. For an overview of the relationship between international relations theory and public international law, see Anne-Marie Slaughter Burley, International Law and International Relations Theory: A Dual Agenda, 87 AM. J. INT'L L. 205 (1993); Anne-Marie Slaughter, Liberal International Relations Theory and International Economic Law, 10 AM. U. J. INT'L L. & POL'Y 717, 718-21 (1995) (discussing how international relations theory can contribute to international law). For an interdisciplinary approach drawing on international relations theory to study international intellectual property regulation, see MICHAEL P. RYAN, KNOWLEDGE DIPLOMACY: GLOBAL COMPETITION AND THE POLITICS OF INTELLECTUAL PROPERTY (1998). See also Ruth Okediji, Cartography, supra note 13.
134. For an overview of the relationship between international relations theory and public international law, see Anne-Marie Slaughter Burley, International Law and International Relations Theory: A Dual Agenda, 87 AM. J. INT'L L. 205 (1993); Anne-Marie Slaughter, Liberal International Relations Theory and International Economic Law, 10 AM. U. J. INT'L L. & POL'Y 717, 718-21 (1995) (discussing how international relations theory can contribute to international law). For an interdisciplinary approach drawing on international relations theory to study international intellectual property regulation, see MICHAEL P. RYAN, KNOWLEDGE DIPLOMACY: GLOBAL COMPETITION AND THE POLITICS OF INTELLECTUAL PROPERTY (1998). See also Ruth Okediji, Cartography, supra note 13.
135. For an overview of the relationship between international relations theory and public international law, see Anne-Marie Slaughter Burley, International Law and International Relations Theory: A Dual Agenda, 87 AM. J. INT'L L. 205 (1993); Anne-Marie Slaughter, Liberal International Relations Theory and International Economic Law, 10 AM. U. J. INT'L L. & POL'Y 717, 718-21 (1995) (discussing how international relations theory can contribute to international law). For an interdisciplinary approach drawing on international relations theory to study international intellectual property regulation, see MICHAEL P. RYAN, KNOWLEDGE DIPLOMACY: GLOBAL COMPETITION AND THE POLITICS OF INTELLECTUAL PROPERTY (1998). See also Ruth Okediji, Cartography, supra note 13.
136. For an overview of the relationship between international relations theory and public international law, see Anne-Marie Slaughter Burley, International Law and International Relations Theory: A Dual Agenda, 87 AM. J. INT'L L. 205 (1993); Anne-Marie Slaughter, Liberal International Relations Theory and International Economic Law, 10 AM. U. J. INT'L L. & POL'Y 717, 718-21 (1995) (discussing how international relations theory can contribute to international law). For an interdisciplinary approach drawing on international relations theory to study international intellectual property regulation, see MICHAEL P. RYAN, KNOWLEDGE DIPLOMACY: GLOBAL COMPETITION AND THE POLITICS OF INTELLECTUAL PROPERTY (1998). See also Ruth Okediji, Cartography, supra note 13.
137. Classical Realism has been the dominant theoretical paradigm of international relations. Despite varying approaches within the Realist school that have given rise to "sub-schools" of realist thought such as "structural realists" (also known as "neo-Realists"), "functionalist" and "rationalist" theories of regimes, the hallmark of Realism has been its premise that power, not law determines outcomes in international interactions. All the branches of Realism, including regime theory, more or less accept this premise (or a modified version) and then proceed to consider other determinants of international behavior such laws, processes and institutions, to rationalize order in the international society. See Burley, supra note 75; Slaughter supra note 75.
138. Classical Realism has been the dominant theoretical paradigm of international relations. Despite varying approaches within the Realist school that have given rise to "sub-schools" of realist thought such as "structural realists" (also known as "neo-Realists"), "functionalist" and "rationalist" theories of regimes, the hallmark of Realism has been its premise that power, not law determines outcomes in international interactions. All the branches of Realism, including regime theory, more or less accept this premise (or a modified version) and then proceed to consider other determinants of international behavior such laws, processes and institutions, to rationalize order in the international society. See Burley, supra note 75; Slaughter supra note 75.
139. In the words of Thucydides, "[t]he strong do what they can and the weak suffer what they must. . . ." THUCYDIDES, HISTORY OF THE PELOPONNESIAN WAR 394 (Richard Crowley trans., 1920).
140. See KENNETH WALTZ, THEORY OF INTERNATIONAL POLITICS 104 (1979); Robert Keohane, Theory of World Politics: Structural Realism and Beyond, in POLITICAL SCIENCE: THE STATE OF THE DISCIPLINE 503 (A. Finifter ed., 1983); Stephen D. Krasner, Structural Causes and Regime Consequences: Regimes as Intervening Variables, 36 INT'L ORG. 185, 190-91 (1982).
141. See KENNETH WALTZ, THEORY OF INTERNATIONAL POLITICS 104 (1979); Robert Keohane, Theory of World Politics: Structural Realism and Beyond, in POLITICAL SCIENCE: THE STATE OF THE DISCIPLINE 503 (A. Finifter ed., 1983); Stephen D. Krasner, Structural Causes and Regime Consequences: Regimes as Intervening Variables, 36 INT'L ORG. 185, 190-91 (1982).
142. See KENNETH WALTZ, THEORY OF INTERNATIONAL POLITICS 104 (1979); Robert Keohane, Theory of World Politics: Structural Realism and Beyond, in POLITICAL SCIENCE: THE STATE OF THE DISCIPLINE 503 (A. Finifter ed., 1983); Stephen D. Krasner, Structural Causes and Regime Consequences: Regimes as Intervening Variables, 36 INT'L ORG. 185, 190-91 (1982).
143. Reichman, Universal Minimum Standards, supra note 1; Reichman, From Free Riders to Fair Followers, supra note 9 .
144. Reichman, Universal Minimum Standards, supra note 1; Reichman, From Free Riders to Fair Followers, supra note 9 .
145. Indeed, the developed/developing country divide has served as the point of departure for much of the scholarly research and commentary on the TRIPs Agreement.
146. The International Intellectual Property Alliance (IIPA) estimates losses to the United States economy of $8.3 billion due to copyright piracy in fifty-one countries. See IIPA 2002 SPECIAL 301 REPORT, Appendix A, available at http://www.iipa.com.
147. As I noted earlier, the TRIPs Agreement required some changes by all countries, and anticipates (at least in theory) changes that might be required to comply with dispute settlement decisions.
148. But see Steinberg, supra note 14 (addressing this question with respect to the GATT/WTO voting process and concluding that the interests of the powerful still prevail even with consensus-based bargaining).
149. This is not to suggest that regime theory is the most comprehensive perspective. With regard to the DSU, however, I find that this perspective reveals some important aspects of WTO dispute settlement with particular regard to the expectations expressed about the effect of TRIPs on international copyright development. In a forthcoming work, I deal more comprehensively with the application of international relations theory to intellectual property regulation. This current article is the first in a broader project which focuses on integrating the study of international intellectual property regulation in the broader context of multi-disciplinary theoretical discussions. See Okediji, Cartography, supra note 13.
150. Krasner, supra note 78, at 186.
151. Krasner, supra note 78; Robert O. Keohane, The Demand for International Regimes, 36 INT'L ORG. 325, 330 (1982); Donald J. Puchala & Raymond F. Hopkins, International Regimes: Lessons from Inductive Analysis, 36 INT'L ORG. 245, 271 (1982).
152. Krasner, supra note 78; Robert O. Keohane, The Demand for International Regimes, 36 INT'L ORG. 325, 330 (1982); Donald J. Puchala & Raymond F. Hopkins, International Regimes: Lessons from Inductive Analysis, 36 INT'L ORG. 245, 271 (1982).
153. Krasner, supra note 78; Robert O. Keohane, The Demand for International Regimes, 36 INT'L ORG. 325, 330 (1982); Donald J. Puchala & Raymond F. Hopkins, International Regimes: Lessons from Inductive Analysis, 36 INT'L ORG. 245, 271 (1982).
154. WALTZ, supra note 78; Krasner, supra note 78, at 190-91. See also Oran R. Young, Regime Dynamics: The Rise and Fall of International Regimes, 36 INT'L ORG. 277 (1982).
155. WALTZ, supra note 78; Krasner, supra note 78, at 190-91. See also Oran R. Young, Regime Dynamics: The Rise and Fall of International Regimes, 36 INT'L ORG. 277 (1982).
156. WALTZ, supra note 78; Krasner, supra note 78, at 190-91. See also Oran R. Young, Regime Dynamics: The Rise and Fall of International Regimes, 36 INT'L ORG. 277 (1982).
157. See RYAN, supra note 75 (examining international intellectual property regulation and the demand for regimes such as TRIPs based on the domestic structure of intellectual property industries). See also Kenneth W. Abbott, Modern International Relations Theory: A Prospectus for International Lawyers, 14 YALE J. INT'L L. 335 (1989) (encouraging an integration of international relations theory, especially regime theory, and international law). See also id. at 339-42 (noting the "narrow positivism" of international law and the analytical tools that international relations theory offers for a more rigorous and sustained examination of the logic and relevance of international law and its relationship to outcomes in interactions between states); Slaughter, supra note 75, at 718 (noting that international relations can make an "enduring contribution to international law"). For a demonstration of the different interests, factors and parties that interact in negotiating international intellectual property agreements, see Professor Pam Samuelson's account of the negotiations of the WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT) in Pamela Samuelson, The U.S. Digital Agenda at WIPO, 37 VA. J. INT'L L. 369 (1997).
158. See RYAN, supra note 75 (examining international intellectual property regulation and the demand for regimes such as TRIPs based on the domestic structure of intellectual property industries). See also Kenneth W. Abbott, Modern International Relations Theory: A Prospectus for International Lawyers, 14 YALE J. INT'L L. 335 (1989) (encouraging an integration of international relations theory, especially regime theory, and international law). See also id. at 339-42 (noting the "narrow positivism" of international law and the analytical tools that international relations theory offers for a more rigorous and sustained examination of the logic and relevance of international law and its relationship to outcomes in interactions between states); Slaughter, supra note 75, at 718 (noting that international relations can make an "enduring contribution to international law"). For a demonstration of the different interests, factors and parties that interact in negotiating international intellectual property agreements, see Professor Pam Samuelson's account of the negotiations of the WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT) in Pamela Samuelson, The U.S. Digital Agenda at WIPO, 37 VA. J. INT'L L. 369 (1997).
159. See RYAN, supra note 75 (examining international intellectual property regulation and the demand for regimes such as TRIPs based on the domestic structure of intellectual property industries). See also Kenneth W. Abbott, Modern International Relations Theory: A Prospectus for International Lawyers, 14 YALE J. INT'L L. 335 (1989) (encouraging an integration of international relations theory, especially regime theory, and international law). See also id. at 339-42 (noting the "narrow positivism" of international law and the analytical tools that international relations theory offers for a more rigorous and sustained examination of the logic and relevance of international law and its relationship to outcomes in interactions between states); Slaughter, supra note 75, at 718 (noting that international relations can make an "enduring contribution to international law"). For a demonstration of the different interests, factors and parties that interact in negotiating international intellectual property agreements, see Professor Pam Samuelson's account of the negotiations of the WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT) in Pamela Samuelson, The U.S. Digital Agenda at WIPO, 37 VA. J. INT'L L. 369 (1997).
160. Okediji, Cartography, supra note 13.
161. The controversial AIDS/HIV anti-retroviral drugs issue, which caused significant worldwide controversy over the effect of TRIPs on access to medicines and other health related concerns in developing countries, refueled the debate over the efficacy of intellectual property in promoting public welfare. Indeed, the Doha Min isterial Declaration suggests that the issue of global intellectual property rights under the TRIPs regime will likely keep the public/private balance at the center of TRIPs enforcement processes, at least with regard to pharmaceuticals. See Okediji, Copyright and Public Welfare, supra
162. Thus far there have been two WTO intellectual property decisions adverse to the United States. See United States - Section 110(5), supra note 38; United States - Section 211 Omnibus Appropriations Act, WTO Doc. WT/ DS176/AB/R (2001) (trademarks). See also Okediji, Cartography, supra note 13 (economic analysis of the relationship between WTO TRIPs dispute settlement and domestic intellectual property policy).
163. Okediji, Cartography, supra note 13.
164. As Professor Keohane explains, regimes encourage cooperation between sovereign states by reducing the transactions costs involved in negotiating accords and by promoting linkages between different regimes thus facilitating stable (if complex) relationships. See ROBERT O. KEOHANE, AFTER HEGEMONY: COOPERATION AND DISCORD IN THE WORLD POLITICAL ECONOMY 244-45 (1984).
165. There is also a more nuanced, analytical distinction between "agreements" and "regimes." One leading regime theorist, for example, notes that agreements tend to be "ad hoc, one-shot" deals. Krasner, supra note 78, at 187 (describing Keohane's distinction between regimes and agreements). On the other hand "[r]egimes are more like contracts, when these involve actors with long-term objectives who seek to structure their relationships in stable and mutually beneficial ways." See Keohane, supra note 86, at 330.
166. There is also a more nuanced, analytical distinction between "agreements" and "regimes." One leading regime theorist, for example, notes that agreements tend to be "ad hoc, one-shot" deals. Krasner, supra note 78, at 187 (describing Keohane's distinction between regimes and agreements). On the other hand "[r]egimes are more like contracts, when these involve actors with long-term objectives who seek to structure their relationships in stable and mutually beneficial ways." See Keohane, supra note 86, at 330.
167. Krasner, supra note 78; Keohane, supra note 86, at 331 (identifying "stable mutual expectations about others' patterns of behavior. . . ." as the "most important function" of regimes).
168. Krasner, supra note 78; Keohane, supra note 86, at 331 (identifying "stable mutual expectations about others' patterns of behavior. . . ." as the "most important function" of regimes).
169. Keohane, supra note 86, at 340 (discussing the effect of issue density in creating a demand for regimes); Young, supra note 87, at 287 (noting that "the growth of interdependence increases the capacity of all relevant actors to injure each other.").
170. Keohane, supra note 86, at 340 (discussing the effect of issue density in creating a demand for regimes); Young, supra note 87, at 287 (noting that "the growth of interdependence increases the capacity of all relevant actors to injure each other.").
171. See Okediji, Cartography, supra note 13 (discussing the TRIPs negotiation process and coalition models in a two-stage game).
172. See United States - Section 110(5), supra note 38. See also Gerard Curzon and Victoria Curzon, GATT: Traders' Club, in THE ANATOMY OF INFLUENCE 298 (Robert W. Cox & Harold K. Jacobson eds., 1973) (discussing the dominance of the United States and the EU in GATT bargaining and outcomes). See Steinberg, supra note 14 (discussing how this has continued despite equality preserving rules such as consensus based decision-making).
173. Puchala & Hopkins, supra note 86, at 273 (stating that formal enforcement in regimes is "extraordinary").
174. Steinberg, supra note 14 (describing a range of power tactics that influence outcomes in the WTO, including asymmetric contracting, and consensus support skewed in favor of powerful states and coercive tactics such as exit from the regime). As stated earlier, one function of regimes is to mitigate the unbridled force of sovereignty by influencing state behavior because of the failure of unilateralism to achieve efficient outcomes. See Krasner, supra note 78, at 186; Puchala & Hopkins, supra note 86, at 271. Even where developed countries may operate based on power, the fact is that in intellectual property regulation, these countries must collaborate to achieve their goals with respect to developing countries. See Arthur A. Stein, Coordination and Collaboration: Regimes in an Anarchic World, 36 INT'L ORG. 299, 300-304 (emphasizing constraints on independent decision-making as a precondition for regime existence).
175. Steinberg, supra note 14 (describing a range of power tactics that influence outcomes in the WTO, including asymmetric contracting, and consensus support skewed in favor of powerful states and coercive tactics such as exit from the regime). As stated earlier, one function of regimes is to mitigate the unbridled force of sovereignty by influencing state behavior because of the failure of unilateralism to achieve efficient outcomes. See Krasner, supra note 78, at 186; Puchala & Hopkins, supra note 86, at 271. Even where developed countries may operate based on power, the fact is that in intellectual property regulation, these countries must collaborate to achieve their goals with respect to developing countries. See Arthur A. Stein, Coordination and Collaboration: Regimes in an Anarchic World, 36 INT'L ORG. 299, 300-304 (emphasizing constraints on independent decision-making as a precondition for regime existence).
176. Steinberg, supra note 14 (describing a range of power tactics that influence outcomes in the WTO, including asymmetric contracting, and consensus support skewed in favor of powerful states and coercive tactics such as exit from the regime). As stated earlier, one function of regimes is to mitigate the unbridled force of sovereignty by influencing state behavior because of the failure of unilateralism to achieve efficient outcomes. See Krasner, supra note 78, at 186; Puchala & Hopkins, supra note 86, at 271. Even where developed countries may operate based on power, the fact is that in intellectual property regulation, these countries must collaborate to achieve their goals with respect to developing countries. See Arthur A. Stein, Coordination and Collaboration: Regimes in an Anarchic World, 36 INT'L ORG. 299, 300-304 (emphasizing constraints on independent decision-making as a precondition for regime existence).
177. Steinberg, supra note 14 (describing a range of power tactics that influence outcomes in the WTO, including asymmetric contracting, and consensus support skewed in favor of powerful states and coercive tactics such as exit from the regime). As stated earlier, one function of regimes is to mitigate the unbridled force of sovereignty by influencing state behavior because of the failure of unilateralism to achieve efficient outcomes. See Krasner, supra note 78, at 186; Puchala & Hopkins, supra note 86, at 271. Even where developed countries may operate based on power, the fact is that in intellectual property regulation, these countries must collaborate to achieve their goals with respect to developing countries. See Arthur A. Stein, Coordination and Collaboration: Regimes in an Anarchic World, 36 INT'L ORG. 299, 300-304 (emphasizing constraints on independent decision-making as a precondition for regime existence).
178. Puchala & Hopkins, supra note 86, at 246 (identifying regimes by the norms that establish procedures).
179. This is an important distinction between diplomatic resolutions to conflicts and regime mediated solutions. With the latter, outcomes are ad hoc and do not generate any consistent norms since no rules exist to condition the states' behavior. See Young, supra note 87 (arguing that patterned behavior eventually creates a set of understandings and expectations that results in conventional behavior).
180. See also Keohane, supra note 86, at 330 (stating that regimes involve actors with long-term objectives who seek to structure their relationship in stable and mutually beneficial ways).
181. Roessler et al., supra note 14 (discussing the role of political pressure in violations of international agreements); Okediji, Cartography, supra note 13 (analyzing strategic use of TRIPs by governments to justify rent-seeking legislation that incorporates maximalist interpretations of the TRIPs Agreement).
182. Roessler et al., supra note 14 (discussing the role of political pressure in violations of international agreements); Okediji, Cartography, supra note 13 (analyzing strategic use of TRIPs by governments to justify rent-seeking legislation that incorporates maximalist interpretations of the TRIPs Agreement).
183. This question of allocation of power between states and international institutions remains one of the most significant questions in a post-WTO world. See John H. Jackson, International Economic Law: Reflections on the "Boilerroom" of International Relations, 10 AM. U. J. INT'L L. & POL'Y 595, 602 (1995);
184. Stephen P. Croley & John H. Jackson, WTO Dispute Procedures, Standard of Review, And Deference To National Governments, 90 AM. J. INT'L L. 193 (1996). Professor Dinwoodie has discussed this problem in the context of copyright.
185. See supra note 45. See also Okediji, Cartography, supra note 13.
186. But see Abbott, supra note 88, at 339 (stating that regime definitions are not "congruent with the ususal descriptive categories of [International Law] such as customary rules. . . .").
187. See Puchala & Hopkins, supra note 86.
188. Professor McDougal described customary law as: [A] process of continuous interaction, of continuous demand and response, in which the decision-makers of particular nation-states unilaterally put forward claims of the most diverse and conflicting character . . . in which other decision-makers, external to the demanding state . . . weigh and appraise these competing claims. . . . Myres S. McDougal, The Hydrogen Bomb Tests, 49 AM. J. INT'L L. 357, 357-58 (1955). This process "create[s] expectations that effective power will be restrained and exercised in certain uniformities of pattern." Id. According to Puchala & Hopkins, regimes exist where there is patterned behavior. Puchala & Hopkins, supra note 86, at 247.
189. Professor McDougal described customary law as: [A] process of continuous interaction, of continuous demand and response, in which the decision-makers of particular nation-states unilaterally put forward claims of the most diverse and conflicting character . . . in which other decision-makers, external to the demanding state . . . weigh and appraise these competing claims. . . . Myres S. McDougal, The Hydrogen Bomb Tests, 49 AM. J. INT'L L. 357, 357-58 (1955). This process "create[s] expectations that effective power will be restrained and exercised in certain uniformities of pattern." Id. According to Puchala & Hopkins, regimes exist where there is patterned behavior. Puchala & Hopkins, supra note 86, at 247.
190. In fact, regimes do not necessarily enhance the welfare of all members nor does the existence of a regime imply a harmony of norms and interests. See Keohane, supra note 86, at 330-31, 336, 355; Puchala & Hopkins, supra note 86, at 250 (discussing distributive bias in regimes and stating that "fairer" regimes tend to last longer); id. at 251-59 (discussing the colonial regime). See also Okediji, Cartography, supra note 13 (arguing against the incorporation of domestic copyright norms wrested through rent-seeking processes in the United States and EU in WTO interpretations of TRIPs provisions).
191. In fact, regimes do not necessarily enhance the welfare of all members nor does the existence of a regime imply a harmony of norms and interests. See Keohane, supra note 86, at 330-31, 336, 355; Puchala & Hopkins, supra note 86, at 250 (discussing distributive bias in regimes and stating that "fairer" regimes tend to last longer); id. at 251-59 (discussing the colonial regime). See also Okediji, Cartography, supra note 13 (arguing against the incorporation of domestic copyright norms wrested through rent-seeking processes in the United States and EU in WTO interpretations of TRIPs provisions).
192. See TRIPs Agreement, supra note 1.
193. See supra note 52.
194. Id.
195. Among other things, there has always been some question whether pre-TRIPs United States copyright law was fully complaint with the Berne Convention requirement that Member states protect moral rights of authors. With TRIPs, the issue would appear to be firmly settled for the United States. See Okediji, Fair Use Standard, supra note 28, at 139 (discussing estoppel with regard to possible TRIPs-based challenges to the United States' fair use doctrine). See also id. and sources cited in footnote 291 on the role of acquiescence in the creation of international law.
196. Of course, this would not be the first time the United States has unilaterally influenced the creation or disruption of a customary norm.
197. One of the significant facts of the TRIPs negotiations is the remarkable, and unprecedented, level of participation by private industry. The private sector continues to play an active role in compliance issues most typically by exerting pressure on the government to take certain actions, including invoking the DSU process against a particular country. Private industry submissions to WTO panels are also common in TRIPs disputes and are often considered by the panels.
198. Young, supra note 87, at 287; Subramanian & Watal, infra note 117.
199. Young, supra note 87, at 287; Subramanian & Watal, infra note 117.
200. This observation is equally applicable to developed and developing countries in their relationships inter se.
201. Puchala & Hopkins, supra note 86, at 273 (concluding that "effectiveness in terms of compliance with rules and procedures of any given regime depends largely upon the consensus or acquiescence of participants. Formal enforcement is extraordinary and coercive enforcement is rare. . . . Usually, it is self-interest, broadly perceived, that motivates compliance."). See also Avrind Subramanian & Jayashree Watal, Can TRIPS Serve as an Enforcement Device for Developing Countries in the WTO?, 3 J. INT'L ECON. L. 403 (discussing cross-retaliation using developed country interest in intellectual property to gain compliance in other areas).
202. Puchala & Hopkins, supra note 86, at 273 (concluding that "effectiveness in terms of compliance with rules and procedures of any given regime depends largely upon the consensus or acquiescence of participants. Formal enforcement is extraordinary and coercive enforcement is rare. . . . Usually, it is self-interest, broadly perceived, that motivates compliance."). See also Avrind Subramanian & Jayashree Watal, Can TRIPS Serve as an Enforcement Device for Developing Countries in the WTO?, 3 J. INT'L ECON. L. 403 (discussing cross-retaliation using developed country interest in intellectual property to gain compliance in other areas).
203. This section provides an overview of the major steps in the dispute settlement process. It is not intended to be an exhaustive treatment of the DSU. For this, see, e.g., ERNST-ULRICH PETERSMANN, THE GATT/WTO DISPUTE SETTLEMENT SYSTEM: INTERNATIONAL LAW, INTERNATIONAL ORGANIZATIONS AND DISPUTE SETTLEMENT 182 (1998); DAVID PALMETER & PETROS C. MAVROIDIS, DISPUTE SETTLEMENT IN THE WORLD TRADE ORGANIZATION, PRACTICE AND PROCEDURE 64 (1999).
204. This section provides an overview of the major steps in the dispute settlement process. It is not intended to be an exhaustive treatment of the DSU. For this, see, e.g., ERNST-ULRICH PETERSMANN, THE GATT/WTO DISPUTE SETTLEMENT SYSTEM: INTERNATIONAL LAW, INTERNATIONAL ORGANIZATIONS AND DISPUTE SETTLEMENT 182 (1998); DAVID PALMETER & PETROS C. MAVROIDIS, DISPUTE SETTLEMENT IN THE WORLD TRADE ORGANIZATION, PRACTICE AND PROCEDURE 64 (1999).
205. I use these numbers to denote the range within which different levels of harmonization can take place.
206. The possibility of uniformity is greatly weakened by uncertainties over domestic implementation of panel decisions. Certain features of the WTO Agreement, however, suggest a strong relationship between the role of domestic courts and compliance with WTO Agreements. See PETERSMANN, supra note 118, at 194-96.
207. See Ginsburg, International Copyright, supra note 3.
208. As the DSU states, "the dispute settlement function of the WTO is a central element in providing security and predictability to the multilateral trading system." See DSU, supra note 6, art. 3(2). This stability and predictability is, again, characteristic of international regimes.
209. Young, supra note 87, at 282-85 (classifying regimes as "spontaneous," "negotiated," and "imposed." Professor Young further distinguishes two kinds of imposed regimes: those where the dominant actor compels conformity to institutional arrangements ( such as in feudalism) and those where the dominant actor promotes arrangements favorable to itself through different leadership styles or manipulative uses of incentives or process). Professor Steinberg's treatment of manipulative uses of the consensus-based bargaining rule in the GATT/WTO would satisfy this definition of an imposed regime. See Steinberg, supra note 14.
210. Young, supra note 87, at 282-85 (classifying regimes as "spontaneous," "negotiated," and "imposed." Professor Young further distinguishes two kinds of imposed regimes: those where the dominant actor compels conformity to institutional arrangements ( such as in feudalism) and those where the dominant actor promotes arrangements favorable to itself through different leadership styles or manipulative uses of incentives or process). Professor Steinberg's treatment of manipulative uses of the consensus-based bargaining rule in the GATT/WTO would satisfy this definition of an imposed regime. See Steinberg, supra note 14.
211. Rufus H. Yerxa & Demetrios J. Marantis, Assessing the New WTO Dispute System: A U.S. Perspective, 32 INT'L L. 795, 808-09 (1998).
212. Roessler et al., supra note 14 (arguing that the DSU manifests a deliberate adoption of a liability rule, not a property rule).
213. DSU, supra note 6, art. 4(6).
214. Id. arts. 4 (1), (2), (5). Despite its informal character, the consultative stage does entail some formalities. Requests for consultations must be in writing stating the reasons for the request and the legal basis for the complaint. See id. art. 4(4). All requests for consultations are to be notified to the Dispute Settlement Body (DSB) and to all relevant Councils and Committees.
215. Following prior GATT practice, however, consultations are considered a mandatory first step. See also PETERSMANN, supra note 118, at 182 ("The procedures for consultations [under Article 4] remain a mandatory first step in the dispute settlement process."); PALMETER & PETROS, supra note 118, at 64 (suggesting that consultations are an implicit prerequisite to requests for establishment of a panel. They note that "The function of the panel . . . is . . . to ascertain that consultations were in fact held.").
216. Following prior GATT practice, however, consultations are considered a mandatory first step. See also PETERSMANN, supra note 118, at 182 ("The procedures for consultations [under Article 4] remain a mandatory first step in the dispute settlement process."); PALMETER & PETROS, supra note 118, at 64 (suggesting that consultations are an implicit prerequisite to requests for establishment of a panel. They note that "The function of the panel . . . is . . . to ascertain that consultations were in fact held.").
217. For discussion of non-legal methods of dispute resolution, see, e.g., Peter Behrens, Alternative Methods of Dispute Settlement in International Economic Relations, in ADJUDICATION OF INTERNATIONAL TRADE DISPUTES IN INTERNATIONAL AND NATIONAL ECONOMIC LAW 1 (Ernst-Ulrich Petersmann & Gunther Jaenicke eds., 1992). See generally ROBERT E. HUDEC, THE GATT LEGAL SYSTEM AND WORLD TRADE DIPLOMACY (2d ed. 1990). The GATT system similarly had both "legal" and "political" or diplomatic means for dispute resolution. See PETERSMANN, supra note 118, at 66-91.
218. For discussion of non-legal methods of dispute resolution, see, e.g., Peter Behrens, Alternative Methods of Dispute Settlement in International Economic Relations, in ADJUDICATION OF INTERNATIONAL TRADE DISPUTES IN INTERNATIONAL AND NATIONAL ECONOMIC LAW 1 (Ernst-Ulrich Petersmann & Gunther Jaenicke eds., 1992). See generally ROBERT E. HUDEC, THE GATT LEGAL SYSTEM AND WORLD TRADE DIPLOMACY (2d ed. 1990). The GATT system similarly had both "legal" and "political" or diplomatic means for dispute resolution. See PETERSMANN, supra note 118, at 66-91.
219. For discussion of non-legal methods of dispute resolution, see, e.g., Peter Behrens, Alternative Methods of Dispute Settlement in International Economic Relations, in ADJUDICATION OF INTERNATIONAL TRADE DISPUTES IN INTERNATIONAL AND NATIONAL ECONOMIC LAW 1 (Ernst-Ulrich Petersmann & Gunther Jaenicke eds., 1992). See generally ROBERT E. HUDEC, THE GATT LEGAL SYSTEM AND WORLD TRADE DIPLOMACY (2d ed. 1990). The GATT system similarly had both "legal" and "political" or diplomatic means for dispute resolution. See PETERSMANN, supra note 118, at 66-91.
220. DSU, supra note 6, art. 4(3).
221. Id. art. 5(7).
222. Id. art. 4(6). The strategic value of the consultations stage is determined by the parties themselves. While parties are encouraged to be completely forthcoming during this stage, the Appellate Body has held that a request for a panel is not dependent on the full disclosure of facts. See WTO Panel Report on European Communities - Regime for the Importation, Sale and Distribution of Bananas, May 22, 1997, WTO Doc. WT/DS27/R ¶ 7.20 [hereinafter European Communities - Bananas]; WTO Panel Report on United States - Restrictions on Imports of Cotton and Man-Made Fibre Underwear, Nov. 8, 1996, WTO Doc. T/DS24/R ¶ 7.61.
223. DSU, supra note 6, art. 6(2).
224. See European Communities - Bananas, supra note 132, ¶¶ 7.29-7.30.
225. See India - Patent Protection for Pharmaceutical, supra note 72.
226. Id. at ¶ 96.
227. DSU, supra note 6, art. 11.
228. The DSB comprises of all WTO Members (typically represented by ambassadors).
229. Id. art. 2
230. See, e.g., id. art. 12(7).
231. This must be done within ten days of the establishment of the panel by the DSB. See id. art. 8.5.
232. Id. art. 8(1).
233. Id. art. 8(4).
234. Id. art. 8(6).
235. Id. art. 8(7). For TRIPs disputes, this would be the Council on TRIPs.
236. Id. art 7.
237. Id.
238. Id. art. 12. Importantly, panels may seek information and technical advice to assist in performing its functions. See id. art. 13(1), (2). Experts may be consulted. Appendix 4 to the DSU sets forth rules for establishing an expert review group and the procedures for such a group. In TRIPs disputes, WIPO plays an important role where information and expert counsel is concerned. In the Section 110(5) dispute for example, the panel asked WIPO for its input regarding the relevant Berne provisions at issue in the case. See, e.g., United States - Section 110(5), supra note 38.
239. DSU, supra note 6, art. 12(8). In urgent cases, the maximum time allowed for the issuance of the panel report is three months. Id. If the panel cannot meet the six month deadline, it must inform the DSB in writing of this fact stating reasons for the delay. The absolute maximum in such an event is nine months from the date of the composition of the panel and terms of reference have been agreed upon. See id. art. 12(9).
240. Id. art. 15. Actually, interim reviews take place twice. The first interim report consists only of the descriptive sections of the dispute. The panel sets a period of time within which parties may comment in writing on this part of the report. Once the period of time for receipt of comments is expired the panel may then issue its full interim report which includes the descriptive sections as well as the panel's findings and recommendations.
241. Id.
242. Id. art. 16(1).
243. Id. art. 16(2).
244. Id. art. 16(4).
245. Id.
246. Id. art. 17(1).
247. Id. art. 17(4). Article 10 governs the rights of third parties to a dispute. Basically, any Member with a "substantial interest" in the case must notify its interest to the DSB and is given an opportunity to be heard by the panel and to make written submissions. To have the benefits of sanctions against a Member whose measure nullifies or impairs the interest of a third party, such third party will have to go through the DSU process as a party to a dispute. In other words, while third parties may enjoy the benefits a Member who complies with a panel or Appellate Body ruling by changing the offending measure, a third party does not have the right to engage in sanctions unless it first brings its own complaint against the offending Member. This is why the EU had to bring a complaint against India with regard to patents for pharmaceuticals even after the United States had won a dispute over the same measure. See WTO Doc. WT/DS79/R, India-Patent Protection for Pharmaceutical and Agricultural Chemical Products, Aug. 24, 1998. For analysis of the United States dispute with India, see Reichman, Securing Compliance, supra note 28. For an overview of all the TRIPs disputes so far, see Okediji, Cartography, supra note 13.
248. Id. art. 17(4). Article 10 governs the rights of third parties to a dispute. Basically, any Member with a "substantial interest" in the case must notify its interest to the DSB and is given an opportunity to be heard by the panel and to make written submissions. To have the benefits of sanctions against a Member whose measure nullifies or impairs the interest of a third party, such third party will have to go through the DSU process as a party to a dispute. In other words, while third parties may enjoy the benefits a Member who complies with a panel or Appellate Body ruling by changing the offending measure, a third party does not have the right to engage in sanctions unless it first brings its own complaint against the offending Member. This is why the EU had to bring a complaint against India with regard to patents for pharmaceuticals even after the United States had won a dispute over the same measure. See WTO Doc. WT/DS79/R, India-Patent Protection for Pharmaceutical and Agricultural Chemical Products, Aug. 24, 1998. For analysis of the United States dispute with India, see Reichman, Securing Compliance, supra note 28. For an overview of all the TRIPs disputes so far, see Okediji, Cartography, supra note 13.
249. Id. art. 17(9)-(13).
250. Id. art. 17(6).
251. For a critique of this aspect of the DSU process, see David Palmeter, The WTO Appellate Body Needs Remand Authority, 32 J. WORLD TRADE, No. 1 (Feb. 1998). See also PALMETER & MAVROIDIS, supra note 118, at 147-52 (discussing same).
252. For a critique of this aspect of the DSU process, see David Palmeter, The WTO Appellate Body Needs Remand Authority, 32 J. WORLD TRADE, No. 1 (Feb. 1998). See also PALMETER & MAVROIDIS, supra note 118, at 147-52 (discussing same).
253. DSU, supra note 6, art. 17(5).
254. Id.
255. Id.
256. Id. art. 21(3).
257. Id.
258. Id. art. 21(3)(a).
259. Id. art. 21(3)(b).
260. Id. art. 21(3)(c).
261. Id.
262. Id. See generally id. art. 21.
263. Id. art. 21(6).
264. See id. art. 22.
265. Id. art. 22(1). Professor Jackson argues that this represents an obligation to perform, rather than an option to buy out of the system by paying concessions. See supra note 25. See also Roessler et al., supra note 14 (agreeing with Judith Bello that the DSU allows payment as an option). If the latter view is correct, it reinforces Professor Steinberg's thesis about a "shadow of power" over the DSU notwithstanding the norm of equality that it embodies.
266. See Steinberg, supra note 14.
267. Id. art. 5.
268. This chart has been slightly modified from the one found on the WTO Web site. For the WTO chart, go to http://www.wto.org.
269. See Dinwoodie, Development and Incorporation, supra note 36; Ginsburg, Supranational Copyright Law, supra note 28; Laurence R. Helfer, World Music on a U.S. Stage: A Berne/TRIPS and Economic Analysis of the Fairness in Music Licensing Act, 80 B.U. L. REV. 93 (2000); Okediji, Fair Use Standard, supra note 28; Lydia Pallas Loren, Paying the Piper, 3 J. SMALL & EMERGING BUS. L. 231 (1999).
270. See Dinwoodie, Development and Incorporation, supra note 36; Ginsburg, Supranational Copyright Law, supra note 28; Laurence R. Helfer, World Music on a U.S. Stage: A Berne/TRIPS and Economic Analysis of the Fairness in Music Licensing Act, 80 B.U. L. REV. 93 (2000); Okediji, Fair Use Standard, supra note 28; Lydia Pallas Loren, Paying the Piper, 3 J. SMALL & EMERGING BUS. L. 231 (1999).
271. See Dinwoodie, Development and Incorporation, supra note 36; Ginsburg, Supranational Copyright Law, supra note 28; Laurence R. Helfer, World Music on a U.S. Stage: A Berne/TRIPS and Economic Analysis of the Fairness in Music Licensing Act, 80 B.U. L. REV. 93 (2000); Okediji, Fair Use Standard, supra note 28; Lydia Pallas Loren, Paying the Piper, 3 J. SMALL & EMERGING BUS. L. 231 (1999).
272. See Dinwoodie, Development and Incorporation, supra note 36; Ginsburg, Supranational Copyright Law, supra note 28; Laurence R. Helfer, World Music on a U.S. Stage: A Berne/TRIPS and Economic Analysis of the Fairness in Music Licensing Act, 80 B.U. L. REV. 93 (2000); Okediji, Fair Use Standard, supra note 28; Lydia Pallas Loren, Paying the Piper, 3 J. SMALL & EMERGING BUS. L. 231 (1999).
273. See Dinwoodie, Development and Incorporation, supra note 36; Ginsburg, Supranational Copyright Law, supra note 28; Laurence R. Helfer, World Music on a U.S. Stage: A Berne/TRIPS and Economic Analysis of the Fairness in Music Licensing Act, 80 B.U. L. REV. 93 (2000); Okediji, Fair Use Standard, supra note 28; Lydia Pallas Loren, Paying the Piper, 3 J. SMALL & EMERGING BUS. L. 231 (1999).
274. United States - Section 110(5) of U.S. Copyright Act, Request for Consultations by the European Communities and Their Member States, Feb. 4, 1999, WTO Doc. WT/DS160/1.
275. United States - Section 110(5) of U.S. Copyright Act, Request for the Establishment of a Panel by the European Communities and their Member States, Apr. 16, 1999, WTO Doc. WT/DS160/5.
276. United States - Section 110(5) of the U.S. Copyright Act, Constitution of the Panel established at the Request of the European Communities, Aug. 6, 1999, WTO Doc. WT/DS160/6.
277. See United States - Section 110(5) of the U.S. Copyright Act, Report of The Panel, June 15, 2000, WTO Doc. WT/DS160/R.
278. United States - Section 110(5) of the U.S. Copyright Act, Panel Report-Action by Dispute Settlement Body, July 31, 2000, WTO Doc. WT/ DS160/8, IP/D16/Add.1.
279. United States - Section 110(5) of the U.S. Copyright Act, Communication from the United States, Aug. 31, 2000, WTO Doc. WT/DS160/9. However, the United States did state in its communication that it did not entirely agree with the panel's decision.
280. Id.
281. United States - Section 110(5) of the U.S. Copyright Act, Request by the European Communities and their Member States for Arbitration under Article 21.3(c) of the DSU, Oct. 26, 2000, WTO Doc. WT/DS160/10.
282. Id.
283. Id.
284. United States - Section 110(5) of the U.S. Copyright Act, Arbitration under Article 21.3(c) of the Understanding on Rules and Procedures Governing the Settlement of Disputes, Award of the Arbitrator, Jan. 15, 2001, WTO Doc. WT/DS160/12. The EU proposed a ten month period as a reasonable period of time. See id. ¶ 5.
285. The United States also cited the small percentage of legislation passed compared to the volume introduced into each new Congress, and the "myriad opportunities for delay inherent in the U.S. legislative process" as factors that made compliance within a shorter time frame uncertain. Id. ¶ 36.
286. Id.
287. United States - Section 110(5) of the U.S. Copyright Act, Proposed Modification of the Reasonable Period of Time Under Article 21.3 of the DSU, July 18, 2001, WTO Doc. WT/DS160/14.
288. United States - Section 110(5) of the U.S. Copyright Act, Recourse to Article 25 of the DSU, Aug. 3, 2001, WTO Doc. WT/DS160/15. See also United States - Section 110(5) of the U.S. Copyright Act, Status Report by the United States, Dec. 7, 2001, WTO Doc. WT/DS160/18.
289. United States - Section 110(5) of the U.S. Copyright Act, Recourse to Arbitration Under Article 25 of the DSU, Award of the Arbitrators, Nov. 9, 2001, WTO Doc. WT/DS160/ARB25/1.
290. United States - Section 110(5) of the U.S. Copyright Act, Recourse to Arbitration under Article 25 of the DSU, Communication from the Arbitrators, Nov. 9, 2001, WTO Doc. WT/DS160/17, IP/D/16/Add.2.
291. United States - Section 110(5) of the U.S. Copyright Act, Recourse by the European Communities to Article 22.2 of the DSU, Jan. 11, 2002, WTO Doc. WT/DS160/19.
292. United States - Section 110(5) of the U.S. Copyright Act, Request by the United States for arbitration under Article 22.6 of the DSU, Jan. 18, 2002, WTO Doc. WT/DS160/20.
293. Untied States - Section 110(5) of the U.S. Copyright Act, Recourse by the European Communities and its Member States to Article 22.6 of the DSU, Constitution of Arbitrator, Feb. 19, 2002, WTO Doc. WT/DS160/21. See corrigendum correcting this document to reflect that it was the United States who requested that the matter be submitted to arbitration. See WTO Doc. WT/DS160/21/Corr.1, Feb. 22, 2002.
294. United States - Section 110(5) of the U.S. Copyright Act, Status Report by the United States, Addendum, Apr. 5, 2002, WTO Doc. WT/DS160/18/Add.3.
295. The Arbitrators in the Section 110(5) dispute made explicit reference to this fact. Id. ¶ 2.1 n.22.
296. DSU, supra note 6, art. 25.
297. But see Steinberg, supra note 14 (suggesting that coercion in the form of threats of exit by stronger countries may compel weaker countries to abstain from exercising rights granted in the agreement).
298. DSU, supra note 6, art. 3(5), 3(6).
299. Ginsburg, Berne Without Borders, supra note 40.
300. See, e.g., DSU, supra note 6, art. 25.
301. Keohane, supra note 86, at 330.
302. Id. ("Relationships of power and dependence in world politics . . . [are] important determinants of . . . regimes.").
303. Id. at 334 (discussing the nesting of agreements within broader agreements so that each regime "helps to make government's expectations consistent with one another").
304. See supra note 2.
305. See supra note 206.
306. See Portugal - Patent Protection Under the Industrial Property Act, Request for Consultations by the United States, WTO Doc. WT/DS37/1.
307. Portugal - Patent Protection Under the Industrial Property Act, Notification of a Mutually Agreed Solution, WTO Doc. WT/DS37/2 (1996); Portugal -Patent Protection Under the Industrial Property Act, Notification of a Mutually Agreed Solution, WTO Doc. WT/DS37/2/Corr.1 (1996).
308. See Pakistan - Patent Protection for Pharmaceutical and Agricultural Chemical Products, Request for Consultations by the United States, WTO Doc. WT/DS36/1(1996); Pakistan-Patent Protection for Pharmaceutical and Agricultural Chemical Products, Request for the Establishment of a Panel by the United States, WTO Doc. WT/DS36/3 (1996); Pakistan-Patent Protection for Pharmaceutical and Agricultural Chemical Products, Notification of a Mutually-Agreed Solution, WTO Doc. WT/DS36/4 (1996).
309. See Japan - Measures Concerning Sound Recordings, Request for Consultations by the United States, WTO Doc. WT/DS28/1, Feb. 14, 1996; Japan -Measures Concerning Sound Recordings, Notification of Mutually Agreed Solution, WTO Doc. WT/DS28/41 (1997).
310. See Canada - Patent Protection of Pharmaceutical Products, WTO Doc. WT/ DS114/R (2000).
311. This may explain the outcome in the United States/Brazil dispute over the latter's local working law. The informal resolution means that the chance for a WTO panel to determine, as a matter of law, the available sc0ope under TRIPs for domestic responses to development concerns such as technology acquisition was avoided. See the chart below for a summary of this dispute.
312. Keohane, supra note 86, at 330.
313. Id. at 340.