than inter-Andean trade, which has accounted for roughly 10 percent of total trade since
the 1990s.
190
Competing trade regimes also sap member states’ commitment to the Andean integration
process. Latin American countries have negotiated free trade agreements for at least half a cen-
tury. Recently, Mercosur—a South American customs union initially comprising Argentina,
Brazil, Paraguay, and Uruguay—has acted as a powerful centrifugal force that pulls Andean
member states away from each other. Andean countries have sought to manage this compe-
tition through a strategy of “open regionalism.”
191
Over the last decade, all five Andean coun-
tries have become associate members of Mercosur, and in 2002 the two regional organizations
entered into their own free trade pact.
192
Open regionalism promotes member states’ trade
interests, but it also diminishes incentives to deepen Andean integration and favors building
closer economic relations with other countries in Latin America.
A second explanation for why intellectual property remains a rule-of-law island is that the
ATJ has been reluctant to interpret Andean rules purposively. Consider a few examples. The
Tribunal has rejected attempts by private litigants to invoke the spirit or goals of the Cartagena
Agreement to restrict member states’ freedom of action in areas not directly regulated by
Andean Decisions.
193
In addition, the ATJ refused to police the scope of permitted exemptions
under the Andean Free Trade Program.
194
Similarly, the ATJ held in a 2002 preliminary ruling
190
Inter-Andean trade accounted for only 3 to 5 percent of total trade during the Andean Pact period. See Avery
& Cochraine, supra note 27, at 183; Hojman, supra note 26; Evolucio´n del proceso de integracio´n 1969–1999,
Comunidad andina [CAN] Doc. SG/di219/Rev.1, at 28 (Apr. 26, 2000) (on file with authors). In the last decade,
trade between Andean countries has become marginally more important, peaking at 13 percent in 1998 but declin-
ing to less than 10 percent a few years later. See M
IGUEL RODR
´
IGUEZ MENDOZA,TRADE RULES IN THE MAKING:
C
HALLENGES IN REGIONAL AND MULTILATERAL NEGOTIATIONS 96 (1999); Mikio Kuwayama, Latin Amer-
ican South-South Integration and Cooperation: From a Regional Public Goods Perspective 14, Economic Commission
for Latin America and the Caribbean, Comercio Internacional Series No. 50 (2005). A related factor is that intra-
regional trade consists primarily of low-value-added finished goods, as opposed to intermediary products used in
the production of high-value-added goods. Producers of these finished goods may gain from lowering intra-Andean
trade barriers, but they may also face increased competition from producers of similar products in neighboring
Andean countries, and thus be less enthusiastic about lowering market barriers. See Kuwayama, supra, at 33; Avery
& Cochraine, supra, at 191–92.
191
Chris Brummer, The Ties that Bind? Regionalism, Commercial Treaties, and the Future of Global Economic Inte-
gration,60V
AND.L.REV. 1349, 1353 & n.7 (2007) (defining “‘open’ regionalism as that which extends the terms
and benefits of regional integration to the rest of the world and ‘closed’ regionalism [as] that [which] locks in special
benefits for members”); see also Mauricio Baquero-Herrera, Open Regionalism in Latin America: An Appraisal,11
L.&B
US.REV.AM. 139 (2005).
192
Acuerdo de complementacio´n econo´mica No. 56, CAN-Mercosur, Dec. 6, 2002, available at ⬍http://www.
sice.oas.org/Trade/MRCSR/acMerAns.asp⬎. The dates of associate membership for Andean countries are Bolivia
(1999), Peru (2003), and Ecuador, Colombia, and Venezuela (2004). Venezuela became a full member of Mercosur
after withdrawing from the Andean Community in 2006. In 2004 the region’s presidents formed the South Amer-
ican Community of Nations. This new continental integration project seeks “the gradual convergence” of the
Andean Community, Mercosur, Chile, and other South American countries. For a more detailed discussion, see
Samuel A. Arieti, The Role of Mercosur as a Vehicle for Latin American Integration,6C
HI.J.INT’L L. 761, 762–65
(2006).
193
See KAREN J. ALTER, Jurist Advocacy Movements in Europe: The Role of Euro-Law Associations in European
Integration (1953–1975) [hereinafter Alter, Jurist Advocacy Movements], in T
HE EUROPEAN COURT’S POLITICAL
POWER:SELECTED ESSAYS 61, 81– 84 (2009) (discussing Cases 1–AI–87, supra note 30; 1–IP–90 (Sept. 18,
1990); and 3–IP–93 ( July 13, 1993) involving regulation of the aluminum industry); Saldı´as, supra note 27, at
21–28 (reviewing ATJ decisions rejecting attempts by litigants to challenge national regulations that conflicted with
an Andean Community policy goal, such as market liberalization).
194
Instead, it held that “the domestic judge is the one with the authority to determine if the product is
included...intheFree Trade Program.” Case 3–IP–93, supra note 193, at 9.
2009] 37ISLANDS OF EFFECTIVE INTERNATIONAL ADJUDICATION