CP’s multilateralism solves IP protection better.

In addition, by developing intellectual property protection outside the traditional fora, like WIPO and the WTO, the negotiation of ACTA undermined the stability of the international trading system and the preference for the multilateral process. 612 It also alienated the trading partners of the ACTA negotiating parties, making it more difficult to undertake future multilateral discussions.

To some extent, it reminds us of a major shortcoming of the unilateral approach embodied in the Section 301 process. As Helen Milner wrote two decades ago of Special 301 and Super 301: Aggressive, bilateral reciprocity violates central tenets of the postwar international trading system. GATT upholds the principles of multilateralism, nondiscrimination, and neutral dispute settlement .... Violations of international law by leading powers will induce other states to violate those laws as respect for them declines. Disregarding GATT norms will bring the entire system into question and may lead to its breakdown, as U.S. actions did to the Bretton Woods monetary regime in the early 1970s. Since GATT has helped provide a stable, prosperous trading environment for forty years, ending it should not be done lightly. Moving from a system of multilateral negotiation and dispute settlement to a bilateral one will increase the costs of negotiating trade liberalization and will greatly politicize the process. Undermining the GATT system in exchange for marginal improvements in the U.S. trade balance does not seem to be a ra tional strategy. 613 Likewise, Assafa Endeshaw expressed concern within the TRIPS context: [The] United States approach will work towards overthrowing any measure of success that the United States has achieved in placing intellectual property on an arguably 'international' pedestal (the TRIPs) after passing through long periods of bilateral arrangements. Consequently, the quiet overhaul that the international IP system has been subjected to through the TRIPS may now be in danger of collapse by the American insistence that it will interpret IP treaties and take any measures it deems appropriate, unilaterally and from its own national perspective. Each move of the United States to take IP matters throughout the world in its own hands will increasingly reduce the global significance of the TRIPs formula to a national system that has been outdated for quite some time.614

Although both Professors Milner and Assafa made their observations on the ill-advised Section 301 sanctions, which have been found to be inconsistent with the WTO Agreement if taken before all remedies permissible under the WTO rules have been exhausted, these observations are highly relevant to the discussion of ACTA today and remind us of the high costs of the "pick and choose" approach. It took the European Union, Japan, and the United States a tremendous amount of time, effort, and energy to create the WTO and the TRIPS Agreement.615 Such creation entailed a considerable amount of coordination, negotiation, and compromise between and among developed and less-developed countries. 616 Although the WTO remains far from satisfactory, and the TRIPS Agreement has yet to provide up-to-date protection to meet the needs of many developed countries and their intellectual property rights holders, the costs of undermining such a well-built system is not to be ignored.

To be certain, the European Union and the United States have complained about the unwillingness of less-developed countries to play ball.617 As stated in Part I.B, the former has tried hard to advance discussion of enforcement issues at both the TRIPS Council and the ACE, at least in the image of its own laws. 618 The frustrations of these countries and their government officials are understandable. However, if countries always negotiate outside the forum when others refuse to play ball, the international trading system is unlikely to be developed the way it is today. In fact, the system owes much of its success to those great statesmen who work hard to create a diplomatic dialogue and to strike compromises among the parties. Diplomacy and statesmanship, after all, are as important as, if not more important than, bargaining.

It is also ironic that developed countries are now complaining about WIPO's limited ability to set international intellectual property enforcement norms when they are the ones who pushed such norm-setting discussions away from this particular organization to the GATT/WTO in the mid-1980s. 619 To those who are familiar with the TRIPS negotiating history, the developed countries' criticism of WIPO for its failure to take on a bigger role in enforcement seems rather disingenuous.

Moreover, by creating a new forum for intellectual property enforcement, ACTA would take away the opportunity to strengthen enforcement norms in the current regimes-whether under the WTO or WIPO. In fact, the creation of multiple fora with overlapping jurisdictions has created serious challenges for national governments. As Kimberlee Weatherall reminded us: There is a risk of confusion and fragmentation in this process, particularly, one would think, for government departments and enforcement bodies subject to multiple overlapping requirements found in multiple overlapping agreements. In a context where we want government to be more efficient, subjecting them to multiple sources of regulation is not likely to lead to happy results. What would we rather government be doing-actually encouraging innovation, or box ticking on their customs processes to check compliance with the multiple different obligations in different treaties? What should money be spent on-grants for artists or yet forms and bodies and meetings about counterfeiting? 620 It is important to remember, given the limited resources, not every country will have the ability to undertake discussions in multiple fora. The more fora there are, the more difficult it will be for less-developed countries to dedicate their efforts to strengthening enforcement norms in a particular forum.

Finally, the "country club" approach that was developed to facilitate the creation of an agreement among like-minded countries would raise a new set of issues. To begin with, such an approach is not unheard of at the international level. For example, like-minded countries have joined together to form coalitions. A lot of times, such coalitions are formed at the regional level, such as the African Group, ASEAN (Association of Southeast Asian Nations), APEC (Asia Pacific Economic Cooperation Forum), the Andean Community, CARICOM (Caribbean Community), CARIFORUM (Caribbean Forum of African, Caribbean and Pacific States), COMESA (Common Market for East and Southern Africa), ECOWAS (Economic Community of West African States), the European Union, GRULAC (Group of Latin American and Caribbean Countries), the Gulf Cooperation Council, and MERCOSUR or MERCOSUL (Southern Cone Common Market). At other times, however, such coalitions are formed based on mutual interests, such as the Group of N (G8, G9, G10, G20, G24, G48, and G77), the Friends of X (Friends of Development, Friends of Fish, Friends of Geographical Indications, and Friends of Services), the Caf6 au Lait Group, the CAIRNS Group, the LikeMinded Group, the Group of Small and Vulnerable Economies, NATO (North Atlantic Treaty Organization), and OPEC (Organization of the Petroleum Exporting Countries).

Coalition-building strategies are not bad per se. 621 By bringing together countries, especially those in the less-developed world, coalitions can achieve leverage that does not exist for each less-developed country on its own. If used strategically, coalitions will enable countries to shape the negotiating agenda, articulate more coherent positions, or establish a united negotiating front. The coalitions will also help less-powerful countries establish a louder voice in the international debates on public health, intellectual property, and international trade. They will even help them combat the external pressure each country will face on a one-to-one basis. In fact, as I have argued elsewhere, there is a strong need for lessdeveloped countries and sympathetic policymakers, NGOs, academics, and media in developed countries to join together to establish what I called "IPC4D"-an acronym for "intellectual property coalitions for development." 622

Nevertheless, given the ability by key ACTA negotiating parties to go it alone-for example, through the Section 301 process-and the fact that they are strong enough even without building coalitions, it remains highly troubling that they now seek to undermine the multilateral process through the creation of a new and untested alternative forum in the form of ACTA. To some extent, this forum reflects the ill-advised "can do, won't do" mentality laid out by the Second Bush Administration. As then-USTR Robert Zoellick wrote in the Financial Times, the United States will separate the "can do" countries from the "won't do," and it "will move towards free trade with [only] can-do countries. '62 3 Such an approach has led to the proliferation of bilateral and regional FTAs, such as those with Jordan, Singapore, Chile, Australia, Morocco, Bahrain, Oman, Peru, Colombia, South Korea, Panama, and the Central America-Dominican Republic Free Trade Agreement (CAFITA-DR).624

Although intellectual property protection remains a key national interest of the United States-regardless of whether the administration is Republican or Democrat-it remains troubling that the current administration would continue the "can do, won't do" mentality laid out by the previous administration. Such continuation is particularly troubling when the present administration has worked so hard to mend its relationship with its trading partners and restore the credibility and integrity of the multilateral regulatory system.