An Overview of the Inherently

An Overview of the Inherently Unequal TRIPS Agreement In consideration of the TRIPS agreement and its implications to the global community, it is important to evaluate the relevance of its establishment as a function of the World Trade Organization (WTO). As this discussion will yield, the TRIPS agreement is the product of a history of international conventions as well as an actuality produced by the trade liberalization sparked after the end of the Cold War. To the latter occurrence, one may attribute the opening of countless new international trade relationships, the deconstruction of politically motivate blockades and the vast flooding of the international community with nations in genuine need of development strategy. To the former, the existence of prior international agreements such as the Paris Convention for the Protection of Industrial Property (1883), the Berne Convention (1886), the General Agreement on Tariffs and Trade (GATT, 1947) and the Patent Cooperation Treaty (1970) would all contribute to the intent and legal precedents of TRIPS. Though all of these conventions would promote the idea and the parameters of an international standard on the subjects of intellectual property and patent-holding, it would not be until the establishment of the WTO that any real global mandate could exist for contending with the subject. The WTO, through its primary role as a mediator, negotiator, and monitor of international trade policies and disputes, serves by design as a gatekeeper of international trade, offering the structural conditions and assembled authority to exact a legitimate level of authority over its member nations. This accounts for the appropriation of many of the conditions resulting from previous global conventions relating to intellectual property for use in the TRIPS legislation, with its reinforcement under the parameters of the new WTO denoting an intellectual property structure with theretofore unprecedented regulatory relevance. In considering the text of the TRIPS agreement in light of its legal implications and some recent case history, the function of the WTO comes into more vivid focus. Indeed, we can see through its approach to intellectual property and patent protections, which its legislative and philosophical thrust tends to endorse as a mode to sustainable global development, that the WTO is designed to reduce the impact of tariffs, diplomatic trade obstructions and basic social/legal/political differences in the interests creating globally viable standards in all categories of commerce. According to this exact premise, the TRIPS agreement functions to serve this interest in the categories of intellectual property and patenting. The analysis of the legal implications of the conditions established by the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) contained here, with a specific focus directed toward understanding the ways in which its policies differ both from former internationally governing agreements or conventions on the subject of intellectual property rights and from currently existent or currently subsiding domestic policies on the subject of intellectual property rights. The core of the focus in this analysis will be on the relevance of patent laws, which have vast economic implications that can be illuminated through several different modes. The 1994 adoption of the TRIPS agreement would induce a collective acceptance of a minimum of standards for the protection of intellectual property and patent rights that, by its own declaration, would be yielded by precedents in these categories set by the Paris Convention and the Berne Convention. These would define all the forms of intellectual property to ultimately be assessed and categorized in the TRIPS agreement, making due for protection under a new and legally enforceable framework such properties as have typically been understood as subject to patent protection for the innovative value to societies and economies. (Gervais, 1) This agreement requires a great deal of ongoing judicial attention, particularly to the inherently fluctuating nature of the agreement. Such is to say that its interest in bringing many nations gradually into the fold through the encouragement of measured adoptions of standards that might promote sustainable development requires constant oversight. Interactions between developed and developing nations and their respective corporate bodies dictate that distinctions in protections for intellectual properties in domestic legal systems will result in global disputes. The function of the WTO as a forum for collecting the input of the international trade community on the actions of its member states and aspiring member states may be noted in one such dispute. This one, between the Novartis pharmaceutical corporate and the nation of India, is demonstrable of the chief cause for dispute, in which a company and its related member state will file complaint against another member state refusing to acknowledge its right to patent protection. In the Novartis lawsuit against India, the company has placed pressure on the developing nation to expedite its integration into a global patenting system, suggesting that the Doha Declaration affirmations have been met with ongoing hostility by internationalizing corporations seeking to establish newly protective markets for their exclusive patenting rights. (Oxfam, 2) One of the defining characteristics of Doha would be its affirmation of the right reserved for all cosigners of the TRIPS to distribute compulsory licenses requiring the release of patented drugs to generic domestic production. According to Section 5(b) of the addendum to the original TRIPS agreement, this freedom is accompanies with right of the member nation to grant such compulsory licenses according to their own grounds. (WTO, 1) Naturally, the patent holding organization may appeal to the international governing body in order to find an intervening application of the overall intent of the TRIPS agreement. The Doha Declaration, though it leans in the direction of diminishing the pressure placed upon developing countries to make unnecessary or premature restrictions upon appropriately flexible patenting practices, nonetheless attempts to strike a balance to the end of maintaining the overall thrust toward greater, as opposed to lesser or static, restrictions upon the generic production of pharmaceuticals. This is asserted in Section 3 of the Doha Declaration, which indicates that "intellectual property protection is important for the development of new medicines." (WTO, 1) This reaffirms a position found in much of the precedent-setting legislation upon which the TRIPS agreement would be based. Indeed, the TRIPS agreement devises to improve through patent production the alignment of developing nations with developed ones, as demonstrated by the parallel policies of the United States. Such legislative measures as Special 301 of its Trade Act require "the US trade representative (USTR) to identify countries it considers have inadequate intellectual property rights, to warn them to improve, and if not, to apply unilateral trade sanctions." (Oxfam, 1) Thus, even as India has sought to retain some objective authority over its own national policies on the issue of drug patenting, the United States has itself adopted a policy whereby its own internal structures are designed to counteract such resistance. The study here goes on to indicate that in addition to the clear economic dangers of imposed by economic sanctions, national governments will often bow to the pressure of more dominant trade partners in the interests of retaining positive diplomatic and political conditions therewith. Here, it is apparent that one of the core deficiencies in the TRIPS agreement, as with many other aspects of the WTO's 'governance' over international trade, is its overextension of any legitimate oversight bodies. Much evidence suggests that the economic robustness of a trade partner is likely to play a greater role in the shaping of this nation's susceptibility to the overarching authority of the progressive conditions endorsed by the Doha Declaration. In its aftermath, the continued resistance of American drug corporations to looser patenting rules in many developing nations suggests a determination by the latter to establish a universal patenting standard that conforms with inherently stricter western policies. To this end, one of the clearest modes through which to observe the embattled nature of the intentions to the Doha Declaration is the fully unchanged position by western pharmaceutical companies on the subject of compulsory licenses, which powerful lobby groups and governments have conspired to legally obstruct. As it falls upon the member nation from which a patent seeking or holding company derives itself to file grievance over a perceived failure by another member nation to honor patent protections, the consent of a member nation to entertain the complaint is required. Certainly, as we continue to explore the legal and realistic implications of TRIPS, its important to note that corporate policies tend to reflect the policies of the nations from which they derive their core operations. Now investigating the notion that the establishment of an international standardization in the governance of patenting laws inherently favours the development of a more protective and restrictive policy in heretofore lax developing nations, it is understood that the TRIPS agreement is consistent with the conventions which had established precedent for its conditions over the course of more than a century of international legislation. It does pave more concretely the way for globalizing corporations to indulge the benefits afforded them in the developed world in spheres with lesser economic, legal or infrastructural stability. In Article 3 of the agreement, the wording is suggestive of the more general tone of the GATT as a whole, which was honed toward breaking down economic barriers which afforded advantages to domestic concerns in trade policy. Here, it is stated that "each Member shall accord to the nationals of other Members treatment no less favourable than that it accords to its own nationals with regard to the protection of intellectual property." (Gervais, 3) This is to indicate that membership in this agreement burdens each member nation with the responsibility of granting and protecting patents with the same level of strictness as would be afforded domestic innovators. Domestic nations, under the conditions of this article, are restricted from tilting competition to the advantage of patent-seekers derived from the nation in question, instead being required to exact the same level of legal protection to foreign patents as to domestic ones. When this concerns the entrance of a corporation from the industrialized sphere into a smaller, less matured and generally still developing nation and economy, there is little question that the outcome of this even playing field will be a considerable advantage to those seeking to use patents awarded in developed nations to control markets in developing ones. (Bowal et al, 96) To this extent though, there is a clear historical pattern wherein such conventions have tended to favour developed nations by way of making more restrictive the laws surrounding international patent protection. The Paris Convention for the Protection of Industrial Property would be the first of such agreements, with the international community as represented by the convention-signing nations proposing the first parameters for international marketing and use of intellectual property. This would specifically concern the way in which patents could be obtained, held and used to levy sustained control over specific items of commercial value. Certainly, by no coincidence, this was a policy established by fast- industrializing nations in a time of industrial revolution designed to endorse innovation and the related capitalist entitlements reaped from that innovation. With its inception in 1883, the Paris Convention established many of the first responses to unanswered questions regarding the relationship between domestic patenting laws and the patenting laws descending from a producer's country of origin. (WIPO, Art. 1) There is a self-evident bias in the very creation of such a universalizing standard as that which must certainly be viewed as a response to the lost opportunity faced by innovating organizations failing to protect the exclusivity of these innovations in new and often loosely governed nations. This means that its provisions are intended by nature to extend protections for intellectual property and to extend restrictions on the production or sale of patented items, with any signing nations therefore subject to pressure for the intensification of domestic intellectual property and patenting laws. As with future forms of such international legislation, the wording in the Paris Convention would resolve that its provisions endorsed the right of company's to seek and maintain product patents over the right of domestic governments to restrict such protections. (WIPO, Art. 5) The Paris Convention explicitly states that no domestic government may be entitled to resist the properly obtained and legally defensible patent of an intellectual property, with the intent being to preserve the profitability of the property in question to its innovator. This informs the right of all signers to TRIPS to be assured that such patents may be honored in a foreign setting as would they be in a domestic setting. Interestingly, in the subsequent Article 4, the agreement incites an older international convention to determine the national treatment formerly directed by bilateral most-favoured-nation policies, now to be guided by TRIPS. Therefore, "granted in accordance with the provisions of the Berne Convention (1971) or the Rome Convention authorizing that the treatment accorded be a function not of national treatment but of the treatment accorded in another country," members of the WTO are prohibited from applying favourtism in the awarding patents. (Gervais, 4) This idealization of national treatment forbearance is, naturally, a subject often for conflict. Here, we may refer to a case with interesting implications. The 2006 conflict between the Shell Group and Nicaragua illustrates one way in which intellectual property may be used as collateral in international trade disputes and how the provisions of TRIPS may function to counteract this misappropriation. This case also illustrates that the scales are significantly tipped in favor of patent holders for a variety of reasons, not the least of which is a legal perspective and approach parallel to that used by the international community. In this case, it is apparent that the outmoded nature of Nicaragua's intellectual property policies would have a significant impact on the way the dispute here would unfold (NicaNet, 1) Shell Petroleum, allegations proved, was responsible for marketing a pesticide to corporate farms operating through South and Central America in the 1960s and 1970s in order to capitalize on banana growing opportunities there. This pesticide would prove biologically hazardous, resulting in the sterilization of countless laborers in such nations as Nicaragua. In response to a refusal on the part of the international community, and United States courts in particular, to take on allegations on behalf of Nicaraguan farmers that Shell was guilty of conspiring to this horrific outcome, Nicaragua gradually developed the legal and political structures within its own court systems to pursue justice on behalf of impacted laborers and their families. (Vis-Dunbar, 9) In 2002, Nicaragua's own courts reached the resolution that Shell was indeed guilty of actively participating in behaviors which directly contributed to the sterilization of Nicaraguan workers, selling a chemical substance known as nemagon to banana growers such as Del Monte and Dole. (NicaNet, 1) This substance had, in 1979, been banned from use in the United States due to awareness of its hazardous properties, but it continued to be used in South and Central America through the 1980s. When the Nicaraguan court awarded a settlement of almost $500 million to its plaintiffs, Shell resisted honoring the national treatment of its commercial activity. In accordance with its own constitutional law, Nicaragua responded by seizing the Shell trademarks on its soil. In response, Shell and Shell Nicaragua filed a complaint requesting intervention by a judicial review as a result of Nicaragua's infringement of its intellectual property. (Vis-Dunbar, 8) In response "the two Shell companies' claim was registered at the International Centre for Settlement of Investment Disputes in Washington, DC in August 2006. They invoked breaches of the Netherlands-Nicaragua bilateral investment treaty (BIT)." (SD, 1) This invocation was deemed accurate by the judicial review and Nicaragua was ordered to return its holdings to corporation. There is, however, within the context of this case, a consideration which fails to be addressed in the impasse between Nicaraguan systemic shortcomings and the dominant political and economic influence of such companies as Shell, Dole and Del Monte. Namely, human rights concerned of which the dispute are symptomatic suggests that there are matters of divergence between developed and developing nations which are not addressed or prevented by the TRIPS agreement. In consideration of international law as a premise for the existence of such organizations as the WTO and TRIPS, a definition of the human rights concerns there related must be applied to all civil, political and commercial interactions. Taken in a sphere of international law, geopolitical theorist Shelly Wright, in 2001, ventured the following proposition: The creation of international law was based on the sovereign will of states acting much as individuals were said to do. Although 'the orthodox positivist doctrine has been explicit in the affirmation that only states are subjects of international law' human rights now insist that individuals must also be seen as subjects, not just objects, of the law of nations. (Wright, 62)

The explicit connection, the author would argue, between the assumption of rights and entitlements according to international law for nations and between nationalist connections to the promotion of human rights must naturally dictate an international, legal responsibility to adhere to core principles in the preservation and extension of human rights. Thus, as we examine a case such as that in Nicaragua, it is clear that this is a consideration that is not due for consideration within the same context as that which determined the outcome of the case. Human rights, figures suggest regarding the overall standing of the World Trade Organization, are relegated to secondary status behind profitability. The TRIPS agreement appears to align with this bias. The Doha Declaration would specify the rights of individual nations to formulate the exhaustion of patent rights. This would be a response to the total absence of any such dictation in the original TRIPS agreement, which in Section 6 determines that no such distinction as to how and when exhaustion of rights should take place must be provided on an international level. (Gervais, 6) This is a distinct point of interest in a work of legislation which otherwise works to move nations away from domestic specificities and more into universal approaches to patent protections. As will be discusses in the subsequent section, this is an important preservation of nations to adapt according to domestic needs to the overall thrust toward restrictiveness imposed the TRIPS agreement. One of the primary assertions of the TRIPS agreement, as with the overarching premise behind trade liberalization, is that the entrance of regulatory bodies promoting international standardization could help to elevate developing nations to an equivalent status of developed nations. However, the TRIPS agreement would prove in its first decade to benefit industries already capable of innovation while stifling developing nations from improving collective living conditions. The Doha Declaration is a demonstration of the need that would become clearer in the years following the adoption of TRIPS. Generally, this 2001 product of a round of WTO talks would be presented as a statement regarding the relaxation of intellectual property rights to the benefit of giving developing and not- yet-developing member nations a means by which to attain affordable access to essential medicines. Article 4 of the Doha Declaration offers an amendment that demonstrates the presumptive nature of TRIPS in projecting to bring innovation to developing nations by imposing increasingly strict patent protections by reconsidering this forcible shove of member nations into potentially premature rigidness. According, Article 4 of the Doha Declaration places an addendum to the conditions of the TRIPS agreement: The TRIPS Agreement does not and should not prevent Members from taking measures to protect public health. Accordingly, while reiterating our commitment to the TRIPS Agreement, we affirm that the Agreement can and should be interpreted and implemented in a manner supportive of WTO Members' right to protect public health and, in particular, to promote access to medicines for all. In this connection, we reaffirm the right of WTO Members to use, to the full, the provisions in the TRIPS Agreement, which provide flexibility for this purpose. (DOHA WTO Ministerial, 1)