Abstract
The author critically examines the role of the World Trade Organisation (WTO). In recent years, it is noted, the organisation’s agenda of trade liberalisation, its perceived lack of accountability and insensitivity to human rights have attracted intense criticism. It has been asserted that provisions of WTO agreements concerning agricultural trade and intellectual property directly affect the ability of governments to fulfil their human rights obligations. Conversely, supporters of the WTO argue that by expanding global trade the organisation assists in raising living standards. While it is generally acknowledged that trade has an important role in improving livelihoods, studies indicate that trade liberalisation has not necessarily achieved this result for many WTO members. The author assesses these claims from a human rights perspective and explores the relationship between trade, human rights and development. The first part of the article, published in Volume 12(2), sketched the history and functions of the WTO, discusses the linkages between trade liberalisation, human rights and development, and assesses the human rights obligations of the WTO. It notes that most WTO Member States have assumed legal obligations through ratification of universal human rights treaties and concludes that the WTO’s trade liberalisation agenda should be more responsive to human rights. This part explores the human rights implications of two controversial WTO agreements: the Agreement on Trade-Related Aspects of Intellectual Property and the Agreement on Agriculture.
Highlights
Independent Expert of the United Nations Human Rights Council on the effects of foreign debt and other related international financial obligations of States on the full enjoyment of all human rights, economic, social and cultural rights Extraordinary Professor, Centre for Human Rights, University of Pretoria
Prior to the adoption of TRIPS, the international framework for the regulation and protection of intellectual property rights consisted of a few GATT rules and a number of conventions, most of which were and still are administered by the World Intellectual Property Organisation (WIPO)
The TRIPS Agreement stipulates some general obligations for compliance, by all WTO Member States irrespective of their level of development, with certain minimum standards of protection of intellectual property, which are in practice the standards applied in developed countries
Summary
The TRIPS Agreement provides for measures that limit the rights of patent holders.138 These include limited exceptions under article 30 of the Agreement, compulsory licences, parallel imports and patent revocation in terms of article 32 of the Agreement.139. These “TRIPS flexibilities”, as they are commonly referred to, are significant from the perspective of the right to health in that they can enhance the ability of WTO Member States to ensure access to affordable medicines. Under article 31, Member States may issue compulsory licences when reasons of general or public interest (such as public health, economic development and national defence) justify it. 148 Hestermeyer (fn 71 above) 253. 149 Velasquez and Boulet (fn 100 above). 150 See Hestermeyer (fn 71 above) 230. 151 Hestermeyer (fn 71 above) 253-254
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