Over the week-end, some steps were taken to bring the Anti-Counterfeiting Trade Agreement (ACTA) into force.
I'm going to get myself in trouble here with international law folks, but let me ask this: Is there a difference between international agreements that have an enforcement mechanism and those that do not? I ask because it's not clear to me that ACTA is going to have a dispute procedure that makes it enforceable.
In the draft text released in April of 2010, there was the following bracketed language in Article 5.1.2(c), stating that an ACTA "Committee" shall:
[[resolve][facilitate the avoidance of] disputes that may arise regarding [its][the] interpretation or application[74] [of this Agreement];
But in the consolidated text released in October of 2010, I don't see anything similar.
There are vague statements like this one in 5.1.2(e):
[the ACTA Committee shall] consider any other matter that may affect the implementation and operation of this Agreement.
This was 5.1.2(d) of the April 2010 draft text. In theory, this could provide an avenue for dispute resolution, but it certain doesn't do that explicitly, and does not provide any guidance in this regard. The final text released in December of 2010 is the same on these issues.
And there's also this consultations provision in Article 38.1 of the final text (which was present as Article 5.5 in the draft text, and Article 5.3.1 of the consolidated text):
1. A Party may request in writing consultations with another Party with respect to any matter affecting the implementation of this Agreement. The requested Party shall accord sympathetic consideration to such a request, provide a response, and afford adequate opportunity to consult.
But there is nothing that looks like binding dispute settlement.
Does this mean that the signatories are free to ignore ACTA? Not that they necessarily would, of course. Presumably, they signed it because they believe in the substance of it. But let's say a country changes its mind and decides to go a different direction in IP protection. Are there any consequences? Could its obligations be enforced? Are there plans to add enforcement provisions at some point?
