The TRIPS-legality of measures taken to address
public health crises: Responding to USTR–State–
industry positions that undermine the WTO
FREDERICK M. ABBOTT
This book honors Bob Hudec for his brilliant career and contributions to the development of the world trading system. Over the course of his career, Bob has contributed compelling and often counter-intuitive insights into the political economy of the General Agreement on Tariffs and Trade–World Trade Organization (GATT–WTO) system. He is responsible for demonstrating the importance of empirical analysis of GATT–WTO dispute settlement. His detailed studies of the GATT process suggested that, in spite of its politicized nature, the dispute settlement system had enjoyed a marked level of success in the real world of diffusing– if not always resolving–disputes. His essay on “justified disobedience” and US Section 301 remains a favorite among law students, who through it are able to grasp that the process of negotiating trade concessions involves the exercise of political power in ways that are not always favorably perceived by those from whom concessions are sought. Bob is an “institution-builder” in the best sense of that term. Through his lifetime of effort devoted to study of the world trading system, he has made an enormous contribution to its success, and to increased prosperity for the people of the world.
Bob Hudec has taken a particular interest in the effects of world trade rules on the developing countries. In recent years, no aspect of GATT and WTO law has more deeply divided the developed and developing countries than the treatment of trade-related aspects of intellectual property rights (TRIPS). This essay addresses the political economy of the TRIPS Agreement from the standpoint of developed– developing country relations. It seeks to explain the underlying tensions and why the political economy of TRIPS is not improving.
The main WTO law-related focus of this essay is the treatment of compulsory licensing and parallel trade under the TRIPS Agreement, with emphasis on the AIDS crisis confronting Africa, Asia, and other parts of the world. There are two principal reasons for addressing this subject matter in some detail. First, and paramount, is theexigencyofthepresentsituation. Africainparticular, anddevelopingcountries in general, are facing a public health crisis of catastrophic proportions,1 and there____________________