Reflections on "Development," "Developing Countries" and the "Progressive Development" of International Trade and Intellectual Property Law
Kwakwa, Edward, Denver Journal of International Law and Policy
The concept of development is moving to centre stage in substantive discussions on intellectual property (IP) and international trade (trade) matters. As part of this trend, developing countries have, in recent years, become much more active participants in ongoing discussions and negotiations in the areas of trade and IP. In particular, there is a growing understanding by countries of the potential of trade and IP as a tool for development, and thus, the implications of trade and IP rules on the socio-economic development of countries. Partly as a result of this trend, the concept of development has also become a much debated topic in ongoing trade and IP discussions and norm-making. (1)
This article looks at the trend of increasing developing country participation and the concomitant increase in attention to the concept of development in trade and IP discussions. It concludes that this trend is also having an impact on the progressive development of international trade and IP law.
The article is presented in three parts. Part II briefly describes the terms "development" and "developing countries," and Part III discusses the extent to which the concept of development has permeated discussions and actual norm-making at the World Intellectual Property Organization (WIPO) and the World Trade Organization (WTO), (2) while Part IV presents some final observations.
II. "DEVELOPMENT" AND "DEVELOPING COUNTRIES"
Webster's Dictionary defines development as "the act, process, or result of developing," or "the state of being developed." (3) It is this broad sense in which the term is used in this article. The concept of development is receiving increased attention and recognition, and playing an enhanced role in international law. Discussion in this article will, however, be limited to its use and impact in the specific and limited context of discussions and activities at WIPO and WTO.
Development has been on the international relations agenda for decades. As Michael Cowen and Robert Shenton stated over a decade ago, development is one of "the central organizing concepts of our time." (4)
There are several examples of international organizations (IOs) that have traditionally dealt with development. These include: the Food and Agricultural Organization of the United Nations (FAO), the International Fund for Agricultural Development (IFAD), the International Monetary Fund (IMF), the United Nations Educational, Scientific and Cultural Organization (UNESCO), the United Nations Industrial Development Organization (UNIDO), the World Bank (IBRD), and the World Health Organization (WHO). (5) More recently, development is playing a much bigger role.
In the United Nations, for example, the Millennium Development Goals (MDGs), which were adopted in 2000, have become the yardstick against which progress in any other area is measured, and several other UN system organizations closely monitor, and strive to help attain the MDGs. (6)
While development has had more of a history, and is easier to understand in the context of organizations such as the United Nations and the World Bank, it is a much newer phenomenon in the context of organizations such as WIPO and the WTO. Also noteworthy is the fact that development now permeates the activities of other IP institutions that do not have development within their objectives or mandates. A prime example of this is manifested in the statement of the President of the European Patent Organisation (EPO) on the rationale behind international cooperation in the international patent system. (7)
The concept of development has recently been at the forefront in intellectual property and trade discussions. In WIPO, for example, the Member States established what is referred to as the "Development Agenda" at their 2004 annual meetings. (8) As part of this agenda, in 2007, the General Assembly of WIPO adopted 45 (out of over 100) recommendations aimed at integrating the development dimension in all WIPO's activities. …