Time To Rethink TRIPS?

In the aftermath of the late July collapse of the Doha Development Round negotiations at the World Trade Organization, some are looking for reasons and next steps. Much focus has been placed on the agriculture stalemate, but intellectual property issues also are a factor, especially for developing countries struggling with the 1994 WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). Fernando Barrio, a professor at London Metropolitan University, argues that reconsideration of the TRIPS agreement, and developed countries living up to the agreement, could go a long way in helping to save the larger WTO round.

“During the informal meeting of the Trade Negotiations Committee held on July 24th in Geneva, the WTO Director-General, Mr Pascal Lamy told heads of delegations in the informal meeting that he was going to recommend a “time out” and the suspension of the negotiations of the Doha Round. The Doha Round, the Doha Development Round, was started in November 2001 with the declaration of the Fourth Ministerial Conference in Doha, Qatar, and included negotiations on agriculture and services, both of interest for developing and developed countries. But, it can be argued that by focusing on development, the Doha Round was supposed to correct the asymmetries and inequities embedded in the result of the Uruguay Round, especially evident in the spirit, text and implementation of the Trade Related Aspects of Intellectual Property Rights Agreement, or TRIPS.

Many, if not most, developing countries accepted TRIPS (those that were not coerced into accepting it) with the expectation that it would be both easier to deal with developed countries demands on intellectual property rights in a multilateral forum like WTO and that in exchange developed countries would make concessions in agricultural subsides. However, the first expectation was rapidly quashed when United States and Europe started a process of bilateral [.pdf] and regional trade agreements where intellectual property rights were the main component and included obligation beyond TRIPS even when the TRIPS’ implementation period had not expired, and the second one was quashed during the last week of July when the “chronicle of an announced death” came to an end and the expected failure of the Doha Round was materialized. Accordingly, it is possible to argue that the compromises assumed by developing countries in the field of intellectual property rights could and should be revised, based on equitable, moral and legal reasons.

Developed countries have clearly not stood up to their promises and in addition it could be argued that, following general principles of law, an agreement can be voided when there is an obvious inequivalence between the obligations of the parties. Since the mutual obligations between developed and developing countries might have been balanced by the Round that just collapsed, it is arguable that the original ones also can be set apart (without even analysing the fact that an agreement entered into by coercion, as the one exercised by the US with the use of the Special 301 [.pdf], is void ab initio). Of course, even the neophytes in international law would point out, correctly, that Art 38 (1) of the Statute of the International Court of Justice mentions both international conventions and general principles of law as sources of international law but there is wide consensus that there is a hierarchy between them, and that international conventions are, therefore, the ones that prevail in case of conflict.

However, during the last few years several developed countries have openly violated international agreements dealing with torture, treatment of prisoners and countries’ right to self determination (specially by the use of unilateral sanctions to force countries into international agreements), which in addition are part of the ius cogens or international peremptory law that prevails over any other source of law, based on their unilateral assessment of their national interest and making unilateral, very debatable interpretations [.pdf] of those fundamental international agreements.

Thus, taking into account that the TRIPS agreement standing alone clearly has a negative impact on developing countries’ public health, access to knowledge and food security, developing countries would have the legal right to suspend its effect, founded on their national interest, until developed countries fulfil their part of their bargain by reaching a successful agreement on dismantling agricultural subsides as promised at the start of the Doha Round.”

Fernando Barrio, Ph.D., is a senior lecturer in business law at London Metropolitan University. He is the Webster University (US) 2006/2007 Des Lee Distinguished Visiting Scholar for Global Awareness.