The TRIPs agreement: A test of the WTO's legitimacy?

Abstract

This paper examines the issue of legitimacy in international public law and its application to the World Trade Organization’s (WTO) agreement on trade-related aspects of intellectual property rights (TRIPs). Since the signing of TRIPs in Marrakesh in April 1994 at the conclusion of the Uruguay Round of trade talks, a formidable compliance-implementation gap has curtailed the possibility of implementing an efficacious intellectual property rights regime on a global basis, a scenario which indicates that the deployment of extensive relational and structural power in trade negotiations does not axiomatically produce the desired transformative outcome within the domestic legislative framework of Member states. This paper argues that the principal reason why TRIPs has not been successfully transposed onto the legislative agenda of WTO Member States is because the agreement suffers from a legitimacy deficit which ultimately undermines not only the efficacy of the agreement itself, but also the authority of the WTO as a global governance institution. The paper also aims to demonstrate how legitimacy is a deep-seated aspect of global governance, given that states are unlikely to abide by norms, rules and decisions taken at institutional level unless they are perceived to provide mutual benefits that render them legitimate. In order to assess the legitimacy of TRIPs as an internationally-binding agreement, this paper begins by outlining the basic tenets of legitimacy in global governance and examines the ostensible benefits of adherence to the precepts of global governance for members, namely reciprocal benefits and lower transaction costs. Expanding upon the work undertaken in this area by Daya Shanker (2002), this paper then seeks to apply Peter Drahos’ theory of democratic bargaining among sovereign states onto the negotiating process that led to the appearance of TRIPs within the WTO in order to determine whether the negotiations that led to TRIPs agreement adheres to that theory’s test of legitimacy.