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WTO Secretariat explains its TRIPS ‘negotiating history’

Geneva, 11 June 2001 -- In posting on its website in April 2001, the documents of the TRIPS negotiations in the Uruguay Round which were derestricted in April 1994, the secretariat of the World Trade Organization was “responding to a demand” and “scores of inquiries” for the “negotiating documents”, according to Mr. Peter Ungphakorn, an information officer of the WTO, in a letter to the SUNS and Third World Network. The WTO letter is reproduced below, along with the original article in SUNS #4887.

The posted documents on the WTO website originally carried the title “negotiating history”. However, says the WTO letter, this was “only a heading” and it has been since changed - after the appearance on the Third World Network website <www.twnside.org.sg> of an article in the SUNS 4887 of 3 May. That article (reproduced separately below)had  reported on the concerns of developing countries regarding the posting of the documents on the WTO website, and the issue having been raised at the meeting of the Informal Group of Developing Countries (IGDC) on 30 April - after some of the delegations had sought, and apparently got no explanations from the secretariat.

The WTO letter has ignored the “mundane” fact that the report in the SUNS was about the views and concerns of WTO members, and that these concerns, and the speculations about the secretariat’s motivation, had figured at the IGDC meeting and later in the WTO corridors, and were voiced by WTO members. That the members of a “rules-based, member-driven organization” have been chary of identifying themselves, or have not formally as yet raised these at the WTO bodies, but have been voicing them unattributively in private meetings to the media or even in some consultations with the NGOs, is presumably because of their worries about the ‘guiding’ role and influence of the secretariat in dispute proceedings, some already pending and others on the way.

There is no explanation either of why only the TRIPS ‘negotiations documents’ have been posted, and not those relating to agriculture, textiles and clothing, rules of origin, pre-shipment inspection, TRIMs, or for that matter, the entire set of UR documents; and who decides the priorities in all these matters - the WTO’s media division, the WTO’s secretariat, the members as a whole, or some among them?

The WTO’s explanation does not really address the questions about the posting at this time of these documents and reports of the UR Negotiating Group on TRIPS. It does not explain either why only these documents, including some minutes and records in the TRIPS negotiating group have been posted, and not those of the Trade Negotiations Committee, where the US threat of ‘Special 301’ visavis developing countries and TRIPS negotiations repeatedly figured. These too have a bearing on the ‘history’ and the ‘carefully negotiated balance’ of the entire TRIPS negotiations.  Irrespective of what view the secretariat-guided panels may take on these, from the public point of view, the ‘history’ of the TRIPS negotiations under  the ‘Special 301’ shows that it is a case of an agreement negotiated and concluded under coercion, and hence illegitimate. Nor does the WTO communication explain why the ‘history’ of only this part of the UR negotiations have been posted - and not others, more so when it is repeatedly reiterated that the entire negotiations and agreements are a ‘single undertaking’. At best the explanation is partial and disingenuous.

The ‘posting’ of the TRIPS negotiations documents on the WTO website, follows an earlier website posting by the secretariat of an explanatory note on pharmaceutical patents and the TRIPS Agreement, and another note, ‘TRIPS: A more detailed overview of the TRIPS Agreement’ which links (and thus attempts to qualify) the right of members, under TRIPS Art.31, to issue compulsory licenses, to Art.27.1, in a manner similar to the interpretation of the European Union and the transnational pharmaceutical lobby, but disputed by other experts as contrary to the ordinary meaning and normal rules of interpretation.

The changing of the ‘heading’ of the TRIPS negotiating documents from ‘negotiating history’, after the SUNS report on Members’ concerns, shows a casual approach.

The letter from the WTO complains that the explanations for the posting were ignored. But some of the explanations in relation to the UR’s Trade Negotiating Committee were so bizarre and contrary to the ‘ordinary meaning’ of the final paragraph 8 of the Marrakesh Declaration of 15 April 1994, that the SUNS had to seek the assistance of three different delegations to look into their own files and records and ‘history’ to confirm the SUNS reading of the actual decisions at Marrakesh. This was why the SUNS ignored the explanations given on background basis, and chose to go only by the formal and official posting.

Website posting of UR documents, no mystery, says WTO

The WTO’s letter (29 May), signed by Peter Ungphakorn says:

We have to accept as a fact of life that the WTO can never do anything right. Normally we are accused of being secretive.  When we bend over backwards to make WTO information available to the public, we provoke 1,700 words of elaborate speculation about our motives (“Doha ministerial to be asked to address TRIPS and Health Care” by Chakravarthi Raghavan, http://www.twnside.org.sg/title/care.htm, 2 May 2001, and South-North Development Monitor or SUNS number 4887.)

Conspiracy theories are always more fascinating than mundane truths. I did explain to Mr Raghavan the reasons for putting the derestricted intellectual property (TRIPS) documents from the Uruguay Round negotiations on the website, and why we did so at that time. Regrettably, he chose to ignore our explanation completely, preferring to quote unnamed “puzzled” and “mystified” delegates. There is no mystery, as I told Mr Raghavan. All you have to do is ask.

Why were these documents put on the website? Because a lot of people ask for them. We were responding to demand. The WTO receives scores of enquiries everyday, including requests for the negotiating documents. The documents are all the documents from the negotiations that led to the TRIPS Agreement that have been derestricted - i.e. those derestricted by the participating governments on 20 March 1994. By making these documents available, the Secretariat is complying with that decision. We used to send the documents out on paper. More recently we’ve been sending them out electronically, attached to emails. Now we are turning the website into the main depository of the WTO’s public information, available to anyone anywhere in the world. Directing people to our library is only useful for those who can come to Geneva. The documents were always available; we simply put them somewhere more accessible.

Why now? Believe it or not, that’s when I finally had the time to do it. We are all very busy, and more up-to-date information took priority over historical documents. Almost a year ago, in June 2000, the WTO website was completely overhauled in an effort to make the WTO’s public material more comprehensive and easier to access. From June 2000 to April 2001, the intellectual property page included a promise that the negotiating documents were “coming soon”. People started to send us gentle reminders: “how soon is ‘soon’?”

Why were they called “negotiating history”? It was only a heading.  I wanted it to be short and punchy, to help researchers looking for historical material from the negotiations. Several paragraphs of text clearly state what the documents are. It’s my turn to be puzzled as to why this has led to such an in-depth analysis invoking everything from the Vienna Law of Treaties to our allegedly sinister motives. But, to avoid puzzling anyone else, the heading has been changed. It’s now much longer and therefore less visible on a web page that is already very busy.

The report in the SUNS #4887

Trade: Doha ministerial to be asked to address TRIPS and Health Care

Geneva, 2 May (Chakravarthi Raghavan) - - The 4th Ministerial meeting of the World Trade Organization, to be held this November at Doha (Qatar) is to be asked to address the issue of “TRIPs and Health Care”.

At a meeting, Monday,  of the informal group of developing countries at the WTO, where the ‘check-list’ of possible issues for discussion at Doha, sent out by the General Council Chair, Mr.  Stuart Harbinson, was discussed, a large number of countries spoke in support of this. At the meeting, India raised this question, and the need for the Doha Ministerial meeting to address it.

The issue of the WTO’s Trade-Related Intellectual Property Rights Agreement (TRIPs), Health and Affordable Medicines has been raised at the TRIPs Council, at its meeting on 4 April, by the Group of African countries, and  received wide support and endorsement. The Council has set one day at its meetings in June to discuss the issue.

In their proposal, the African group of countries had said they wanted the special discussions to feed into the preparatory process for the Doha ministerial.

Since then, the GC chair, Mr. Harbinson has sent out an ‘initial check-list of possible issues for discussion’ at Doha, and the informal developing country group at its meeting on Monday discussed the proposed check-list of issues.

India raised at the meeting the TRIPS and Health Care issue, and suggested that the Doha ministerial meeting should address this. A large number of countries present supported this.

Separately, India also drew the attention of the members to the World Trade Organization posting on its ‘web-site’ last week some 84 documents relating to the Uruguay Round TRIPs negotiations, and under the title of ‘Negotiating History’ <www.wto.org/english/tratop_e/trips_e/trips_e.htm>

Several of the delegations, later speaking informally and non-attributively, were ‘puzzled’ by the secretariat suddenly posting the documents on its website now, and even more expressed their concern at these being listed under the title ‘Negotiating History’.

The term ‘Negotiating History’ has a particular legal connotation in terms of international treaty negotiations and is generally governed by the Vienna Law of Treaties and practices.

A negotiating history has to be prepared, and put before the plenipotentiaries who negotiate and conclude the negotiations (with an agreement, or sometimes fail to do so) and has to be approved by them.

While the secretariat of the General Agreement on Tariffs and Trade, prepared such a negotiating history and placed it before the Trade Negotiations Committee in 1979 (at the end of the Tokyo Round Negotiations), as the report of the Director-General to that TNC, no such report or history was ever prepared and placed before the final meeting of the Uruguay Round Trade Negotiations Committee at Marrakesh.

In fact, before Marrakesh, the secretariat toyed with the idea of drawing up a negotiating history, but ultimately decided against it since its versions could be challenged at Marrakesh - given the course of the entire negotiations - from September 1986 to March 1994. While there were a number of formal proposals, and formal meetings of the various negotiating groups and the TNC and its subordinate bodies, a considerable amount of the negotiations, more than in the past, was conducted in secret and informally, and among a small group of delegations, and with several informal ‘non-papers’ put on the table in such talks. The outcome of such secretive, informal talks, and with the GATT DG supplying ‘compromise’ text in crucial deadlocked areas, were presented to others on a take-it-or-leave-it basis, and they were forced to take it. To call this a negotiating history would be a travesty of facts,

Trade officials, including those in the cabinet of the then Director-General Peter Sutherland said at that time that given the problems that such a history would face, they would not present any official history, but that they were preparing internal notes which would be on the secretariat files.

These were never made public, though from time to time, in key disputes, these notes and views of the secretariat on the course of negotiations, have been surfacing in the dispute settlement process, when the secretariat in servicing the panel process, has placed them before panels in its notes to the panels.

This has been challenged several times, and this way of the secretariat influencing the panel process has led to an erosion in the credibility of the dispute process (both by panels and the appellate body) and public view of lack of impartiality and a pro-corporate bias,  in general, and even more so in relation to the TRIPs Agreement.

The documents relating to the TRIPs negotiations, as of the negotiations in all other areas of the Uruguay Round, were in fact officially ‘derestricted’ at Marakesh on 30 March 1994.

That decision said that the TNC decided that ‘certain documents’ associated with the UR-MTNs shall be derestricted in accordance with the following procedure:

a)   the secretariat will prepare a list of UR documents proposed for derestriction, which will include Secretariat background notes prepared in connection with the negotiations, as well as document indexes, minutes of the negotiating groups and working papers that do not include details of individual country positions or proposals;

b)   this list will be circulated to all participants;

c)   documents on the list will be derestricted 60 days after its circulation unless a participant has requested that a document remain restricted;

d)   the Secretariat will issue a list after the date fixed for derestriction specifying the documents derestricted and the documents remaining subject to restriction.”

And almost as if by prior arrangement, a US publisher (who was presumed, by other country delegations, to have got access to the official texts via the US Trade Representative’s office), very quickly published in two or three volumes the documents (officially tabled) of the Uruguay Round.

The secretariat itself did not appear to have done any thing further, and those wanting to do ‘research’ were always directed to the GATT/WTO library where the ‘derestricted’ documents were available. Government delegations themselves have been able to access all the documents - documents that the GATT Director-General Arthur Dunkel (in a moment of frustration and exasperation when he was unable to conclude the negotiations) once called the GATT cemetery of documents.

There is no credible explanation as to why the secretariat has now posted them on its website or why only documents in TRIPS have been dealt with thus, and not those in respect of other agreements.

Delegations of developing countries, particularly those actively involved in these issues, have been considerably mystified by the way the TRIPs documents have now been put on the WTO website, under the title ‘Negotiating history’, with a note: “Official documents from the 1986-94 Uruguay Round trade talks, giving scholars a picture of how the TRIPS agreement came about..”

The website note adds: “Below you can download 84 derestricted documents, some of them reports of meetings, others material compiled by the GATT secretariat, including synoptic tables of proposals. Two documents in the package are the draft ‘Final Act’ of December 1990. A number of other documents remain restricted - three additional documents containing the derestriction decisions are included in the package.”

Some trade diplomats wondered whether the ‘posting’ of the documents now, and characterising it as a ‘negotiating history’ has something to do with some high-profile disputes involving TRIPS - the US dispute against Brazil, referred to a panel, though panellists are still to be named, and the consultations sought by the US with Argentina over its laws to give effect to TRIPs obligations.

Another line of speculation has been that the TRIPs division of the secretariat, which has the reputation among the membership, of being the most partisan, has been feeling the heat of public agitation on the TRIPs and health care and drugs issues. Its efforts, with that of the WHO (at the recent meetings at Hosbjor in Norway, in trying to steer the discussions towards ‘differential pricing’ (and as a concomitant, segmentation of  markets and restrictions on ‘parallel’ imports), and the claims that the TRIPs Agreement provides the necessary flexibility for developing countries has not been very successful.

It was challenged at Hosbjor by some of the NGOs who were allowed to be present, and the entire TRIPS issue, and affordable medicines, has now come high up on the international public agenda, with not merely NGOs like Medicines Sans Frontier and Oxfam, but even health care providers in the US, who are challenging both the issue of costs of medicines and their affordability, as well as the view that the exclusive monopoly patent privileges are the only way to promote research and development.

The UN Human Rights Commission last month adopted a resolution, mooted first by Brazil and which then attracted wide co-sponsorship, with only the US abstaining, asking all States to “ensure that application of international agreements is supportive of public health policies which promote broad access to safe, effective and affordable preventive, curative or palliative pharmaceuticals and medical technologies.”

This debate has put the WTO and its TRIPS enthusiasts on the defensive visavis civil society and governments of the developing world - many of whom in fact negotiated under coersion and threats of US ‘Special 301’ trade sanctions, and countries being put on a ‘special watch list’, with a statement that the US would judge the issue on the basis of the stands taken by their negotiators in the course of negotiations.

The TRIPS and its costs have become one elements behind the challenge to the WTO and its legitimacy.

In fact TRIPS is now seen by some trade observers as a ‘cancer’ implanted into the trading system, and producing negative effects.  Unless excised out of the system, it may metasticize the system itself.

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