Can the Intellectual Property-Human Rights Framework Bridge the Gap Between Vietnam’s Legal Reality and Rhetoric?
Creators: name: Phan, Christine T.
Publisher: name: Columbia Journal of Asian Law
Year: 2008

description: In January 2007, Vietnam joined the World Trade Organization (WTO). It was viewed as a landmark step forward for a country having a free market only since 1986. For Vietnam, gaining membership in the WTO created an obligation to ascribe to the WTO-administered Agreement on the Trade-Related Aspects of Intellectual Property (TRIPS), the multilateral treaty currently guiding international IP law.1 While Vietnam has now nominally adopted TRIPS-style laws, enforcement of those laws is virtually nonexistent, making Vietnam one of the world’s foremost piracy hotspots. Although TRIPS did not create Vietnam’s piracy problems, it has done nothing to ameliorate their impact. Furthermore, it has undermined key aspects of Vietnam’s development, such as the dissemination of knowledge, access to food and medicine, and respect for the rule of law. Generally, TRIPS harms less developed countries (LDCs), spurring these countries and Non-Government Organizations (NGO’s) to speak out against the regime. However, the WTO and the World Intellectual Property Organization (WIPO), the traditional international IP institution, are deadlocked because of the global growth of Intellectual Property rights (IPR) and subsequent resistance to this growth. Parties intending to weaken the TRIPS regime have turned to other forums to advance their priorities. One such forum is international human rights (HR) law. The convergence of IP and HR holds great promise for rebalancing the international IP system by allowing greater power of self- determination to LDCs. However, the flexibility embraced by the IP-HR framework requires that the unique political, economic, and cultural characteristics of each country be taken into account in developing an IP system. The many differences among LDCs could thus ultimately derail the burgeoning framework. While a patchwork of bilateral IP agreements and treaties characterized international IP before TRIPS, it is unclear whether such a framework is workable after TRIPS. This paper will use Vietnam as a test case for the nascent IP-HR framework, exploring both the international political climate and particular national characteristics that might prevent the IP-HR framework from achieving success. More specifically, this paper will focus on how Vietnam’s Confucian culture, socialist government, potential for economic growth, and eagerness to court Western investment will stress the developing IP-HR framework and may even prevent the goals of the IP-HR framework from being realized in Vietnam and elsewhere. Part II discusses Vietnam’s path to WTO membership, detailing the opening of the Vietnamese market in 1986, Vietnam’s IP and trade relations with the U.S., and the harmful effects on Vietnam of the trade- centric IP prerogative espoused by TRIPS. Part III discusses how the harms caused by TRIPS have spurred LDCs to retaliate by refocusing international IP to incorporate both proprietary and human rights concerns, leading to the development of an alternative IP-HR framework. The origins and current interpretations of the burgeoning IP-HR framework are discussed here as well as current developments emanating from the framework to provide a background for the specific application of the framework to, Vietnam. Part IV discusses implications of the IP- HR framework for Vietnam and whether Vietnam would likely welcome the framework’s goals, focusing on the country’s political, economic, and cultural characteristics. Part V concludes. [1] Agreement on Trade-Related Aspects of Intellectual Property Rights, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1C, Legal Instruments – Results of the Uruguay Round [hereinafter TRIPS].
description: Columbia Journal of Asian Law, Vol. 22 No. 1 (2008)