Re: Self-Executing Status of WIPO Copyright Treaty

On Wed, 23 Jun 1999, Mark Lemley <mlemley[_at_]mail.law.utexas.edu> wrote:
>
> On Tue, 22 Jun 1999, Darrell Panethiere <darrell.panethiere[_at_]ifpi.org> wrote:
> >
> > And the nature, or even the existence of implementing legislation
> > cannot matter. WIPO will accept instruments of ratification even in
> > the absence of any implementation. As you know, that is only required
> > once the treaties go into force.
>
> OK, I know less than nothing about international law, so forgive me
> if this is a stupid question. But does ratification of the treaty
> necessarily imply that it is self-executing?

Assuming ratification, etc., there are two basic conditions bearing on self-execution. One condition applies to specific treaty provisions, so that, roughly speaking, if the language of a treaty provision purports on its own terms to give rise to a private party's right, that provision may be self-executing, that is, invoked as a basis for judicial decisions. For example, most if not all provisions affirming minimum rights in the Berne Convention are taken to be self-executing in most Berne countries. The other condition turns on the legal regime of a given country: if it takes treaties to be part of the law of the land, and most do, then treaty provisions, to the extent susceptible of self-execution, are binding on its courts. Otherwise, if a legal regime, like the U.K.'s, Sweden's, etc., excludes treaties, notably from serving as bases of judicial decisions, no treaty will be self-executing there. Where a country's legislation implements treaty provisions fully, whether these are susceptible of self-execution or not, the issue may be mooted. These theoretically distinct conditions may apply in diverse practical, occasionally muddled situations, for example, in the U.S. and China. For further analysis, see my chapter, "International Copyright: An Introduction," at sects. 3[2], 3[2][c], 3[4], in INTERNATIONAL COPYRIGHT LAW & PRACTICE (Bender).

     Paul Geller
http://www-bcf.usc.edu/~pgeller/
<pgeller[_at_]law.usc.edu> Received on Thu Jun 24 1999 - 20:28:56 GMT