A Long 'TRIP' Home: Intellectual Property Rights, International Law and the Constructivist Challenge

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Introduction

The question of why sovereign states comply with the seemingly powerless rules of international law has engaged scholars for decades. Over the years, international relations scholars have sought to formulate compliance theories in their myriad attempts to unravel the complex factors and processes that animate state behaviour in the international legal order. The debate amongst compliance scholars has centred largely on the issue of whether coercive measures such as military force and sanctions can play a viable role in the design and management of international regimes. (1) These scholars may be broadly divided into two camps: the "enforcement school", which advocates the use of punitive mechanisms to punish errant conduct, and the Chayes' "managerial school", (2) which proposes that compliance is more effectively fostered through dialogic interactions between states that seek to persuade and socialize, rather than coerce, them into voluntary adherence to the principles of international law.

While international lawyers and international relations theorists have traditionally focussed their energies on issues of compliance relating to areas of international law such as the use of force, (3) environmental law, (4) and human rights, (5) relatively few scholars have studied the field of international intellectual property regulation from a "compliance theory" perspective. In this article, I seek to explore some of the major compliance issues arising under the Agreement on Trade-Related Aspects of Intellectual Property Rights (6) (the "TRIPS Agreement"), which entered into force in 1995 under the purview of the World Trade Organization ("WTO"). By engaging in the study of intellectual property regulation at the multilateral level, I seek to draw connections between compliance theory and intellectual property law-disciplines that, until fairly recently, have had few intersections. (7) In my view, the growing interdisciplinary interest in compliance theory has inspired a vast and rich body of scholarship from which intellectual property regulation, as an emerging field of international law, can draw valuable insights.

Intellectual property laws, which govern rights arising in products of creative or innovative endeavour, (8) have traditionally been the subject of sovereign jurisdiction, and implemented along geopolitical lines. (9) However, the advent of global free trade has challenged this state-centric paradigm by raising questions of applicable standards and jurisdiction as intellectual property goods cross national borders. (10) The "internationalization" of intellectual property norms, driven largely by the desire of innovation-rich countries for more rigorous and harmonized standards of protection, (11) has provided international lawyers with the opportunity to revisit their debate on the proper roles of enforcement and persuasion in the design of multilateral regimes. In particular, the TRIPS Agreement's introduction of punitive measures, traditionally used to discipline errant conduct in the realm of international trade, (12) to the sphere of intellectual property regulation has sparked renewed interest in the efficacy of sanctions in generating compliance and normative change in the international legal order. (13)

Since 1995, the "marriage" (14) between international trade regulation and intellectual property law under the institutional framework of the TRIPS Agreement has attracted commentary from many intellectual property lawyers. Interestingly, although the great majority of TRIPS commentators have not explicitly used "compliance theory" as their "optic of analysis", many of them have expressed a preference for gentler, more consultative methods of regime management over formal, coercive and confrontational dispute resolution mechanisms. Their recommendations appear to derive insights from managerial theory, although the link has not been explicitly acknowledged.

In this article, I seek to build upon the existing commentary on the implementation of the TRIPS Agreement by exploring how a more explicit connection between compliance theory and intellectual property regulation offers valuable insights on the challenges of TRIPS regime management. …