NAFTA's Regime for Intellectual Property: In the Mainstream of Public International Law
Nafziger, James A. R., Houston Journal of International Law
In this Decade of International Law,(1) economic integration is undoubtedly the greatest achievement of global and regional communities. New institutions -- particularly the World Trade Organization (WTO);(2) the North American Free Trade Agreement (NAFTA);(3) the Treaty Establishing a Common Market Between the Argentine Republic, the Federal Republic of Brazil, the Republic of Paraguay, and the Eastern Republic of Uruguay (MERCOSUR);(4) and the Asia Pacific Economic Cooperation Forum (APEC)(5) -- are monumental and, on balance, popular achievements. In the United States, President Clinton relied on his ability to gain political support for increased economic integration as a means of bolstering public opinion of his administration during its first two years.
II. Transformation of Unilateral Measures into Public International Law
Nowhere is international cooperation in the progressive development and codification of international economic law more evident than in the sphere of intellectual property rights.(6) The creation of new regimes for the protection of these rights excites practitioners and scholars alike. Consider the NAFTA, the first trade agreement to include a comprehensive scheme for protecting intellectual property rights.(7) The pertinent provisions are striking examples not simply of regional integration in traditional terms, but of the capacity of a regional agreement to internationalize what had previously been a domain largely reserved for sovereign authority and private law.
Although the NAFTA parties have also been parties to a variety of multilateral agreements on intellectual property law that supplement and give effect to domestic regulations,(8) the NAFTA provides a wholly new organizational framework of collaboration.(9) Although its requirements are largely consistent with, and therefore a reflection of, domestic legislation,(10) they also harmonize and progressively develop the law to form a more comprehensive, intergovernmental regime." In this way the protection of intellectual property rights is becoming part of the mainstream in public international law, at least in the Western Hemisphere.(12)
While it is arguable that intellectual property rights are no more in the mainstream of public international law than trade, investment, and other topics of international economic law, the NAFTA's provisions for intellectual property rights, in concert with other international agreements, represent a particularly noteworthy transformation in the character of the legal regime.(13) It might also be argued that the protection of intellectual property rights has always been a topic of transnational law, defined to blend elements of public and private law. However, it was a marginal topic at best, and in Romano-Germanic (civil law) terms, it clearly fell on the private side of the law in both the academic world and in practice.(14) Although the distinction between "public" and "private" law often seems abstract to common law attorneys, it has considerable significance in countries like Mexico, which has a civil law tradition. To call this distinction academic is precisely the point: it serves to help determine the curriculum of law faculties, focus scholarly attention, and eventually set the diplomatic agenda. The NAFTA framework of intellectual property rights is significant in both the practice and the study of international law. As an academic matter, it deserves a more prominent place in the classroom, as well as in basic treatises and textbooks on international law.(15)
Not long ago, international protection of intellectual property rights relied heavily on efforts to apply national laws extraterritorially.(16) To be sure, these agreements have significantly influenced domestic law and have introduced public international law into the transnational regulation of intellectual property law. Nevertheless, it would seem that the regulatory regime has remained essentially private and unilateralist. …