Global public health: Should the trade forum reign?

Journal of Intellectual Property Rights

Volumn 18, Issue 1, 2013, Pages 88-92

  Agitha, T G ^a  

^a Department of Physics   (India)

Author keywords

Adequacy of trade forum; Human right; Public health; Who

Indexed keywords

EID: 84872745494     PISSN: 09717544     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (35)

1. Article 1(1) of the Universal Declaration of Human Rights states: 'Everyone has the right to a standard of living adequate for the health and wellbeing of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control'. Article 12 of the International Covenant on Economic, Social and Cultural Rights requires the States Parties to the Covenant 'to recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health' and to take steps to achieve the full realization of this right including, the prevention, treatment and control of epidemic, endemic, occupational and other diseases; the creation of conditions which would assure to all medical service and medical attention in the event of sickness etc. (emphasis added).
2. Helfer Laurence R, Regime Shifting: The TRIPS Agreement and new dynamics of international intellectual property lawmaking, The Yale Journal of International Law, 29 (1) (2004)18-23;
3. Sell Susan K, Private Power, Public Law: The Globalization of Intellectual Property Law, Cambridge Studies in International Relations(Cambridge University Press, New York), 2003;
4. Watal Jayashree, Intellectual Property Rights in the WTO and Developing Countries (Oxford University Press, New Delhi), 2001;
5. Helfer Laurence R and Austin Greame W, Human Rights and IP - Mapping the Global Interface (Cambridge University Press, New York), 2011, 36-37.
6. Sell Susan K, Private Power, Public Law: The Globalization of Intellectual Property Law, Cambridge Studies in International Relations (Cambridge University Press, New York), Chapter 4.
7. Sell Susan K, Private Power, Public Law: The Globalization of Intellectual Property Law, Cambridge Studies in International Relations(Cambridge University Press, New York), 2003 Chapter 4, pp. 80-81;
8. Mossinghoff Gerald J, The importance of intellectual property protection in international trade, Boston College International and Comparative Law Review, 7(2)(1984) 236.
9. His argument is that in order to compete internationally the US industry was bound to innovate and due to the high cost of research and development, innovation, required the incentive of strong IP protection. Likewise, effective use of patents is also required for increased exporting and licensing of new technology. Thus, patents and trademarks are integral components of trade and industry (pp. 236-238).
10. In the Diplomatic Conference on the Revision of the Paris Convention the United States wanted an elimination of compulsory exclusive licenses for the failure to work patents and it almost succeeded in achieving this in the Third Session. However, there was a setback in the following sessions. Mossinghoff Gerald J, The importance of intellectual property protection in international trade, Boston College International and Comparative Law Review, 7(2)(1984) 246-247;
11. Helfer Laurence R, Regime Shifting: The TRIPS Agreement and New Dynamics of International Intellectual Property Lawmaking, The Yale Journal of International Law, 29 (1) (2004) 20.
12. Helfer Laurence R, Regime Shifting: The TRIPS Agreement and New Dynamics of International Intellectual Property Lawmaking, The Yale Journal of International Law, 29 (1) (2004) 21, 22. According to the author three institutional features of the GATT/WTO made it a superior venue for the United States and the EC to negotiate intellectual property protection standards. With their largest domestic markets, they have significant negotiating leverage in the GATT/WTO and the principle of consensus on which the negotiations in GATT/WTO operates can be used by the United States and the EC have strategically to force disclosure of weaker states' preferences, block the advancement of proposals those states favored, and advance their own initiatives; the ability to link intellectual property protection to other issue areas within the GATT/WTO expanded the zone of agreement among states with widely divergent interests; the GATT's dispute settlement system was perceived to be far more effective than the mechanisms for reviewing states' compliance with WIPO-based conventions.
13. Helfer Laurence R, Regime Shifting: The TRIPS Agreement and New Dynamics of International Intellectual Property Lawmaking, The Yale Journal of International Law, 29 (1) (2004) 19-20;
14. Gervais Daniel, The TRIPS Agreement - Drafting History and Analysis (Sweet and Maxwell, London), 1998, p. 9-10;
15. Watal Jayashree, Intellectual Property Rights in the WTO and Developing Countries (Oxford University Press, Delhi), 2001, 21, 22
16. Sell Susan K, Private Power, Public Law: The Globalization of Intellectual Property Law, Cambridge Studies in International Relations (Cambridge University Press, New York), 2003, Chapter 5.
17. Article IX of the Agreement Establishing the World Trade Organization. Consensus in the WTO does not mean unanimity, but rather is met when no Member present in the meeting formally objects the decision to be taken. Panagiotis Delimatsis, Transparency in the WTO Decision-Making, TILEC Discussion Paper, DP 2012-006, 9 February 2012, p. 8, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2001919; Article IX of the WTO Agreement and the accompanying footnote.
18. Article IX of the Agreement establishing the World Trade Organization states that 'where a decision cannot be arrived at by consensus, the matter shall be decided by voting.' It defines consensus the same way it had been defined in GATT practice since 1959: a decision by consensus shall be deemed to have been taken on a matter submitted for consideration if no signatory, present at the meeting where the decision is taken, formally objects to the proposed decision (See footnote 1 to Article IX.1). If there were recourse to voting in the WTO, Article IX provides that decisions would be taken by majority, two-thirds, or three-fourths vote-depending on the type of measure. But there has been no voting at the WTO.
19. Steinberg Richard H, In the shadow of law or power? Consensus-based bargaining and outcomes in the GATT/WTO, International Organization, 56(2) (2002) 339-342, http://www.jstor.org/stable/3078608.
20. The author examines this phenomenon in detail in this article; Panagiotis Delimatsis, Transparency in the WTO Decision-Making, TILEC Discussion Paper, DP 2012-006, 9 February 2012, p. 9.
21. Lee Kelley, Sridhar Devi, Patel Mayur, Bridging the Divide - Global Governance of Trade and Health, The Lancet, 373 (9661) (2009) of 416-417, www.thelancet.com.
22. Schott Jeffrey J and Watal Jayashree, Decision-making in the WTO Policy Brief, 2 March 2000, http://www.iie.com/publications/pb/pb.cfm?ResearchID=63#note4. Green Room consultations typically include the Quad (i.e. United States, European Union, Canada, and Japan), Australia, New Zealand, Switzerland, Norway, possibly one or two transition economy countries, and a number of developing countries. Developing countries that often participate in the Green Room include Argentina, Brazil, Chile, Colombia, Egypt, Hong Kong, China, India, Korea, Mexico, Pakistan, South Africa and at least one ASEAN country; most smaller developing countries stay out for lack of adequate resources or capabilities. Also read Mayur Patel, 'New Faces in the Green Room: Developing Country Coalitions and Decision Making in the WTO' Global Trade Working Paper, GEG Working Paper 2007/33, http://www.globaleconomicgovernance.org/wp-content/uploads/Patel_Main%20text_new.pdf. The author states at p. 3 that the lack of transparency and exclusivity of these meetings, combined with the limited resources of weak states, meant that developing countries found themselves isolated from many decision-making processes.
23. Steinberg Richard H, In the shadow of law or power? Consensus-based bargaining and outcomes in the GATT/WTO, International Organization, 56 (2) (2002) 339,346-348,355, http://www.jstor.org/stable/3078608. However, Mayur Patel, in his study, 'New Faces in the Green Room: Developing Country Coalitions and Decision Making in the WTO' Global Trade Working Paper, GEG Working Paper 2007/33 http://www.globaleconomicgovernance.org/wp-content/uploads/Patel_Main%20text_new.pdf has expressed the view that recently, coalition building among different interested groups has shown its impact in the decision making process and has improved the participation of developing countries in WTO decision making. The information gathered by these coalitions are being widely disseminated internally. This information dissemination has allowed weak states to identify trade-offs and to contribute to consensus-building. It has also improved some aspects of the internal transparency of the negotiations (far from all), particularly given that records of informal meetings are not kept, and hence, unlike official meetings, they cannot be followed without an actual presence in the discussions or an established line of communication p. 17, 19; Panagiotis Delimatsis, Transparency in the WTO Decision- Making, TILEC Discussion Paper, DP 2012-006, 9 February 2012, p. 9.
24. E/CN.4/Sub.2/2001/10, Globalization and its impact on the full enjoyment of human rights, Progress report submitted by J Oloka-Onyango and Deepika Udagama, in accordance with Sub-Commission resolution 1999/8 and Commission on Human Rights decision 2000/102 (Globalization Report), p. 15,17-23.
25. BBC News, 19 April 2001, 15:32 GMT 16:32 UK, SAvictoryinAidsdrugscase, http://news.bbc.co.uk/2/hi/africa/1285097.stm (5 November 2012);
26. Sarah Joseph, Pharmaceutical corporations and access to drugs: The 'fourth wave' of corporate human rights scrutiny, Human Rights Law Quarterly, 25(2) (2003) 443.
27. WT/MIN(01)/DEC/2 adopted on 14 November 2001, http://www.wto.org/english/thewto_e/minist_e/min01_e/mindecl_trips_e.htm.
28. This is evident from the South African and Brazilian experience when those countries went for making use of compulsory licensing flexibilities.
29. E/CN.4/Sub.2/2001/10, Globalization and its impact on the full enjoyment of human rights, Progress report submitted by J. Oloka-Onyango and Deepika Udagama, in accordance with Sub-Commission resolution 1999/8 and Commission on Human Rights decision 2000/102 (Globalization Report), p. 19 para. 41;
30. Henrik Horn, Louise Johannesson and Petros C Mavroidis, The WTO Dispute Settlement System 1995-2010: Some Descriptive Statistics, Research Institute of Industrial Economics, IFN Working Paper No. 891, 2011, http://www.ifn.se/wfiles/wp/wp891.pdf.
31. Panel meetings are closed and opinions of individual panelists will not be made available. E/CN.4/Sub.2/2001/10, Globalization and its impact on the full enjoyment of human rights, Progress report submitted by J Oloka-Onyango and Deepika Udagama, in accordance with Sub-Commission resolution 1999/8 and Commission on Human Rights decision 2000/102 (Globalization Report), p. 19, para. 42.
32. Fidler David P, The future of the World Health Organization: What role for international law? (1998) FacultyPublications. Paper 698. http://www.repository.law.indiana.edu/facpub/698 [Vanderbilt Journal of Transnational Law, 31 (5) (1998),1089-1091].
33. WHO Framework Convention on Tobacco Control (WHO FCTC), the first treaty negotiated under the auspices of the World Health Organization, http://www.who.int/tobacco/framework/WHO_FCTC_english.pdf.
34. WHO Document EB101.R24. It urges member states, inter alia, to reaffirm their commitment to develop, implement and monitor national drug policies to ensure equitable access to essential drugs and to ensure that public health rather than commercial interests have primacy in pharmaceutical and health policies and to review their options under the Agreement on Trade-Related Aspects of Intellectual Property Rights to safeguard access to essential drugs.
35. World Health Organization, Health for All in the 21st Century, WHO Doc. A51/5 (1998), http://apps.who.int/gb/archive/pdf_files/WHA51/ea5.pdf. For example, para. 52 of the policy states that 'WHO will develop international instruments that promote and protect health, will monitor their implementation, and will also encourage its Member States to apply international laws related to health.'