CP solves and secures WTO legitimacy – they’ll say yes on IP protections but only prior consultation sets norms and avoids marginalizing the WTO.
Okediji ‘8 [Ruth L. Okediji; Ruth L. Okediji is the Jeremiah Smith. Jr, Professor of Law at Harvard Law School and Co-Director of the Berkman Klein Center. A renowned scholar in international intellectual property (IP) law and a foremost authority on the role of intellectual property in social and economic development, Professor Okediji has advised inter-governmental organizations, regional economic communities, and national governments on a range of matters related to technology, innovation policy, and development. Professor Okediji was a member of the United States National Academies’ Board on Science, Technology and Policy Committee on the Impact of Copyright Policy on Innovation in the Digital Era.; “WIPO-WTO RELATIONS AND THE FUTURE OF GLOBAL INTELLECTUAL PROPERTY NORMS”; Netherland Yearbook of International Law; doi:10.1017/S016767680800069X]//KuGa
The TRIPS Council serves as chief administrator for the TRIPS Agreement, responsible primarily for monitoring compliance with its provisions.172 Compliance in this regard should be viewed not as a constraint on the scope of the Council’s jurisdiction but rather as an explicit grant of authority to, in the first instance, interpret and give full force and meaning to the obligations contained in the TRIPS Agreement and to foster ongoing cooperation among member states with respect to global IP issues. In carrying out its monitoring functions, the Council exercises enormous power over the conceptual framework and practical orientation of the global IP system. This incorporates issues of particular concern to DCs and LDCs, but also attends to the importance of securing the Uruguay bargain against threats that might unravel states’ commitment. Article 68 provides that the Council is the forum where WTO members can ‘consult’ on matters ‘relating to trade-related aspects of IP rights’ and receive assistance with respect to dispute settlement procedures. Thus, the consultative function of the Council offers a tremendous opportunity to leverage diplomacy to overcome resistance to IP issues in an environment in which broader concerns could also be aired. Nothing in the language of the Council’s mandate suggests a limited jurisdiction with respect to IP matters to which the TRIPS Council may direct its attention. The use of ‘trade-related intellectual property rights’ to qualify the issues which members can bring to the Council for consultation cannot reasonably be viewed as anything but a polite effort to avoid explicitly marginalizing WIPO’s role in promoting global IP protection and the measures (i.e., primarily treaties) designed to enhance such protection.173 Indeed, the TRIPS Council may ‘consult with and seek information from any source it deems appropriate’, notwithstanding the formal cooperation with WIPO. In effect, the Council’s mandate authorizes activities that span and pervade the full spectrum of the global IP architecture, from overseeing members states’ domestic laws and ensuring compliance with TRIPS obligations, to discussions and negotiations regarding established norms and obligations in IP generally, and participation as needed in the context of dispute settlement. The scope of the Council’s activities clearly extends beyond the obligations currently embodied in the TRIPS Agreement and it would seem to legitimately encompass any issue which affects the interests of the global IP system structured around the Uruguay bargain. This is evidenced by the additional issues directed to the Council under the Doha Ministerial.174 Nothing would suggest, for example, that the TRIPS Council is precluded from discussing any IP issue on the grounds that the topic is not ‘trade-related’. Indeed, the seemingly unlimited scope of the Council is reflected in the fact that it is charged to ‘carry out such other responsibilities as assigned to it by the Members’. Presumably, then, nothing precludes a WTO member from raising concerns not directly addressed in TRIPS before the Council. For example, considerations of political prudence aside, it is unlikely that interposing concerns raised by the WIPO Development Agenda175 would raise outcries that such work is beyond the scope of the Council. As mentioned earlier, the government of Brazil has requested just this very thing, namely that the normative basis for technical assistance in the Development Agenda should inform the discussions and work on the same issue in the TRIPS Council.176 Indeed, given the development concerns referenced in the TRIPS Agreement177 but not in the WIPO Convention, the TRIPS Council clearly is more directly and extensively charged to address and foster cooperation over issues at the intersection of IP and development. This is evidenced by the formal recognition in TRIPS of the special interests of LDCs.178 Further, the TRIPS Agreement recognizes the need for balance and the mutual interests of users and owners of IP rights to promote social and economic welfare.179 Neither the Paris or Berne Conventions reflect an acknowledgement of IP as a means to accomplish social end