Reflections on "development," "developing countries" and the "progressive development" of international trade and intellectual property law.

• Author: Kwakwa, Edward

1. INTRODUCTION

   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.

2. "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. It established a Committee on Development and Intellectual Property whose task, among others, was to work on development-related issues at WIPO. (9) The Development Agenda provides the following, among other things: (1) WIPO technical assistance must be "development-oriented ... taking into account the priorities and special needs of developing countries ... as well as the different levels of development of Member States," (2) WIPO must "further mainstream development considerations into WIPO's substantive and technical assistance activities and debates, in accordance with its mandate," and (3) "WIPO's legislative assistance shall be, inter alia, development-oriented and demand-driven, taking into account the priorities and the special needs of developing countries...." (10)

   The Development Agenda was streamlined through WlPO's revised Program and Budget for the 2008-2009 biennium, and has since been provided for in all subsequent Program and Budgets. (11) Against this background, it is instructive to note that the concept of development itself does not appear anywhere in WIPO's mandate.

   Development has had an equally prominent role in the WTO. As Asif Qureshi points out, the Doha Round negotiations under the auspices of the WTO "had been orchestrated as a 'development round,' and its agenda was intended to integrate development into the very 'architecture' of the international trading system." (12) By launching the Doha Development Agenda in 2001, the WTO Members "placed development issues and the interests of developing countries at the heart of the WTO's work." (13) Indeed, paragraph 19 of the WTO's Doha Ministerial Declaration mandates WTO's TRIPS Council to "take fully into account the development dimension." (14)

   The concept of development plays a key role in other aspects of WTO's activities. The legal status or the binding nature of various concepts at the heart of development, such as principles of less-than-full reciprocity, and special and differential treatment, have been extensively debated. (15)

   As relates to the concept of "developing countries," it is important to start with certain caveats. It should be pointed out at the outset that the concept of "developing countries" is not an exact or clearly defined one in international law, and is even less so in the multilateral trade or IP context. The term "developing countries" is used with reckless abandon in discussions in multilateral fora. Too often, the term is unaccompanied by any explanation of its precise scope or meaning. While any number of plausible definitions of the term "developing countries" is conceivable, in this article, the reference is to all countries except those that are referred to as countries in transition to a market economy, and those that are generally perceived to belong to the group of industrialized countries. (16)

   The concept of "developing countries" also includes the so-called "least-developed" countries (LDCs). (17) While this may be a somewhat arbitrary definition, I am unaware of the existence of a more scientific or precise definition. More importantly, the proposed definition serves adequately the import of this article.

   The developing countries reflect a diverse range of interests and sometimes differ considerably in their respective positions on various subjects. While there are areas of significant commonality, their concerns and interests naturally differ from developing country to developing country. It is also a truism that some arguments and issues apply more to certain developing countries than to others. A developing country such as Ghana may have a completely different set of priorities than, say, Brazil. Similarly, a net food-importing developing country's interests will not necessarily be coterminous with those of a developing net food-exporting country; nor will a developing oil exporting country pursue the same policies and interests as a developing oil importing country.

   There are certain defined groups or bodies that cut across developed and developing country interests. The Cairns Group has among its nineteen members, sixteen developing countries. (18) The Organization for Economic Cooperation and Development (OECD), while traditionally comprised of industrialized countries, now includes developing countries such as Chile, Mexico and Republic of Korea. (19) It also includes some countries in transition and/or central European and Baltic countries, such as the Czech Republic, Estonia, Poland, Slovakia and Slovenia. (20) Also noteworthy is the fact that most of the world's poor live in certain middle-income countries, although those countries may no longer be perceived as typical developing countries. (21)

3. THE PROGRESSIVE DEVELOPMENT OF INTERNATIONAL TRADE AND INTELLECTUAL PROPERTY LAW

   The Developing Countries in the WTO

   Historically, the developing countries have not been as active in the WTO as their developed country counterparts have been. (22) The reasons include lack of adequate participation and representation at WTO meetings, and financial constraints (which affect their human, institutional and infrastructural capacity). (23) Given the extreme importance of the multilateral trading system and the impact of decisions made at WTO, the developing countries need to participate much more effectively in the WTO. The developing countries could benefit a lot more by using WTO as a forum to promote their agenda. (24)

   The WTO is one of very few international organizations whose constituent instrument specifically provides for decision-making by consensus. (25) This effectively gives each of the WTO's Members a veto power, (26) which implies that the developing countries may be much more powerful at WTO than they are in the UN General Assembly or Security Council. The process of taking decisions by consensus is in the interest of developing countries because through consensus, each individual WTO Member is able to retain a right of veto, thus...