US embassy cable - 05SANTIAGO2331

C O N F I D E N T I A L SANTIAGO 002331 
 
SIPDIS 
 
SIPDIS 
 
STATE FOR WHA/BSC, PM,EB,DRL 
STATE PLEASE PASS TO USTR 
 
E.O. 12958: DECL: 11/09/2015 
TAGS: KJUS, SCUL, KBIO, ETRD, MARR, CI 
SUBJECT: CONSTITUTIONAL COURT PRESIDENT ENVISIONS PROGRAM 
WITH US SUPREME COURT, TALKS IPR AND ARTICLE 98 WITH 
AMBASSADOR 
 
REF: SANTIAGO 01615 
 
Classified By: Ambassador Craig Kelly for reasons 1.4(b) and (d). 
 
1.  (U) Summary: Newly appointed Constitutional Court 
President Jose Luis Cea Egana called on the Ambassador on 
November 9.  Cea expressed deep admiration and affection for 
the U.S. and said he would like to explore ways the 
Constitutional Court could work with the Embassy to promote 
democracy, freedom and justice.  He expressed his desire to 
have a U.S. Supreme Court Justice, active or retired, or 
possibly a senior clerk, attend the Ibero-American Conference 
of Constitutional Court Judges planned for October 26-28, 
2006.  The Ambassador queried Cea about possible 
constitutional issues for Chile in negotiating an Article 98 
agreement, and noted ongoing problems with respect to 
intellectual property rights in Chile.  End Summary. 
 
2.  (U) Cea informed the Ambassador he had been appointed 
recently to the Constitutional Court (CC) for a nine-year 
term, and will serve as President of the court through 2009. 
Cea said the recent Constitutional reforms (reftel) gave the 
CC broader powers to apply constitutional judicial review to 
executive and legislative acts.  Constitutionality questions 
can be brought by any acting judge, lawyers involved in 
litigation or criminal trials, an affected individual, or the 
CC itself can decide to intervene and rule on the 
constitutionality of a government or legislative act. 
 
3.  (U) Cea said he would like to initiate an exchange 
relationship between the U.S. Supreme Court and the CC.  He 
asked that a Supreme Court Justice or senior clerk visit 
Chile to reinforce the juridical and institutional 
connections between our countries' judiciaries.  He said that 
Justice Breyer had visited Chile in 2001 or 2002, and that 
Justice Scalia had been in Valdivia fifteen years ago.  He 
believed that former Justice Sandra Day O'Connor had also 
visited Chile in the past.  Cea said he had met Justice 
Scalia in 2002 and suggested he again visit Chile, but Scalia 
had demurred due to his busy schedule. 
 
4.  (U) Cea advised that Chile would host the Ibero-American 
Conference of Constitutional Court Judges planned for October 
26-28, 2006.  The main theme will be the power of judicial 
review.  Cea said participation of a U.S. Supreme Court 
Justice, whether active or retired, would strongly support 
the conference and underline the groundbreaking role of the 
U.S. judicial system.  He said it would be possible to 
develop other activities at universities and law schools to 
take advantage of the opportunity a U.S. Justice visit would 
represent for Chile.  The Ambassador said it was an 
interesting proposal and suggested Cea investigate the 
possibility of asking a senior clerk or retired justice to 
participate, given the demands on serving justices. 
 
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ICC/ARTICLE 98 
-------------- 
 
5.  (C) The Ambassador asked why Chile's accession to the 
International Criminal Court (ICC) would require a 
constitutional reform.  Cea replied that in 2002, the CC 
ruled that ICC ratification was inconsistent with the Chilean 
Constitution in 24 areas.  Cea said he would have dissented 
from the ruling if he had been on the court at the time, as 
the interpretation was based too strictly on the letter of 
the constitution, and his judicial philosophy required a 
broader interpretation of the document.  The Ambassador's 
asked if an Article 98 agreement would also require judicial 
review.  Cea replied that once the ICC reform passed, whether 
to enter an Article 98 would be a GOC decision, not a 
constitutional matter. 
 
---------------------------- 
INTELLECTUAL PROPERTY RIGHTS 
---------------------------- 
 
6.  (C) The Ambassador raised the U.S.-Chile Free Trade 
Agreement, noting that the only rough spot in the 
implementation had been protection of IPR.  The Ambassador 
used the example of Chilean licensing authorities not only 
failing to respect U.S. patents, but (in the case of 
pharmaceuticals) actually using U.S. companies' submitted 
testing and safety data in deciding to license a pirated 
product.  Cea said that he had performed a study 15 years ago 
showing that IPR was generally not well respected in Chile. 
 
7.  (C) Cea said operative laws on industrial and 
intellectual property (Chilean law draws a distinction) do 
 
 
not effectively protect intellectual property rights 
enshrined in the Chilean Constitution.  He said in his career 
as an academic he had argued for stronger IPR protections, 
and agreed with the Ambassador that IPR provisions in the FTA 
were not being respected.  He added that some of the major 
fortunes in Chile had been made or increased through the 
violation of patent and copyright protections, and asserted 
the lack of judicial predictability was a widespread problem 
throughout Latin America, Africa and Asia.  Although Chile 
was relatively better than many countries, it continued to 
have problems in this area, he concluded. 
 
8.  (C) Comment: Cea is a former Fulbright Scholar and Ford 
Foundation grantee.  He has worked closely with Post on 
judicial reform assistance programs.  He appears sincere in 
wanting to establish an institutional relationship between 
the Chilean Constitutional Court and U.S. Supreme Court. 
Post will look for ways to direct Cea's obvious enthusiasm 
into channels for cooperation. 
KELLY