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Redesigning Sovereignty: The Effects of Trips on the Sovereignty Norm

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From 1986 until 1994, delegations from around the world participated in the eighth round of multilateral trade negotiations (the Uruguay Round). One key outcome of the negotiations was the World Trade Organization (WTO) supplementing the General Agreement on Tariffs and Trade (GATT); another the Agreement on trade related aspects of intellectual property (TRIPS). The delegations that negotiated the TRIPS agreement did not intend to contest or transform the sovereignty norm. Rather, “the real debate is about the balance between state and society, and the particular form of international intervention.” Nevertheless a homogeneity of protection of intellectual property emerged, which has a potential impact on the sovereignty norm through the world-wide membership to the Agreement.

This chapter seeks to show how in the negotiations on intellectual property, ideas on international trade, intellectual property and economy, converged into a single strand. I will take the structure of ideas of international negotiations as the ensemble of institutions and ideologies affecting the subject matter of the negotiations in a specific time period. The structure of ideas consists of (a) a constitutional level (sovereignty and market); (b) international regimes; and (c), ideas and ideologies that support or challenge the existing order embedded in the regimes and the constitutional level. In the course of the Uruguay Round negotiations, the dominant ideology that emerged has become known as the Washington Consensus. The Washington Consensus incorporates a specific view on the relation between state and market, but it is of course itself contested: the set of ideas embodied in the 1970s drive for a New International Economic Order (NIEO), constitutes an important counterpoint to it. NIEO ideas and alternative development theories certainly resonated in the negotiations on intellectual property. These ideas exist in a dynamic tension with the existing institutions associated with TRIPS. Two regimes are relevant here: the international trade regime (ITR) and the International Intellectual Property Regime (IIPR). The principles of the GATT/WTO as well as the weak basic intellectual property right standards of the IIPR are part of the structure of ideas of Uruguay Round negotiations on intellectual property. This structure worked towards an international homogenization of intellectual property rights, in a way broadly conforming to the more general process of harmonizing rules and regulations affecting the economy and finance, and restructuring the relation between state and market. This process of homogenization, I will argue, potentially results in a new quality of sovereignty as the conditions for sovereignty, and thus for statehood, are expanded to include the internationally homogenized regulations and laws on intellectual property.
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Document Type: Research Article

Publication date: 01 January 2006

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