Info Service on WTO and Trade Issues (May13/09)
28 May 2013
Third World Network
friends and colleagues
following article by Brook K. Baker first appeared in IP-Health Digest
Vol. 37 Issue No. 9. Professor Brook K. Baker is with Northeastern
University School of Law's Program on Human Rights and the Global
Economy, and is Honorary Research Fellow, University of KwaZulu Natal,
Durban, South Africa.
Third World Network
faith negotiation tactics in LDC extension request
Published in SUNS #7590 dated 24 May 2013
Boston, 23 May (Brook K. Baker*) -- Least developed country Members
of the WTO have offered a properly motivated request for an unconditional
extension of the transition period within which they must become fully
compliant with the TRIPS Agreement. Their request is elegantly simple
and straightforward and is entirely consistent with the requirements
of Article 66.1 of the TRIPS Agreement.
First, they request an extension that is not burdened by a unauthorized
standstill/no-rollback provision that requires them to maintain existing
levels of compliance with TRIPS standards. Such a clause was improvidently
granted in 2005 when LDC Members sought their first full extension
of the LDC transition period. At that time, rich countries insisted
LDCs lock-in IP standards imposed by past colonial powers or adopted
pursuant to the warped technical assistance offered by WIPO and other
technical agencies. In essence, LDCs were coerced or tricked into
adopting a standstill provision that had only been authorized by TRIPS
Article 65.5 with respect to non-LDC developing country Members in
terms of their shorter and non-extentible transition periods.
LDC Members are rejecting that approach this time, wishing to maintain
the policy space they may need to undo implementation, application,
and enforcement of IP rights if and when they conclude that that is
in their national interests to do so, taking into account their weak
technological and institutional capacities.
Given strong evidence that heightened intellectual property rights
and enforcement mechanisms are not associated with technological advancement,
foreign direct investment, or development more broadly, LDCs are making
a very wise choice to regain freedom to undue IP shackles that have
mainly benefitted IP rightholders from rich countries and that have
resulted in unaffordable prices for many essential public goods including
medicines, educational resources, and green technologies.
Second, LDCs request an extension that lasts as long as a particular
LDC Member remains an LDC. Again they have offered a compelling rationale.
Their individual and collective conditions remain substantially unchanged
- they have fallen even further behind in terms of their technological
base and they have yet to overcome crushing capacity constraints that
negatively impact their economic and social development. Short extensions,
even when tacked together, do not provide sufficient time to overcome
inherited, structural deficits. In addition, the high cost of IP-protected
monopoly priced goods drains scarce foreign currency reserves and
undermines key government investments in infrastructure, capacity-building,
and social services. The path to more sustainable development for
LDCs is long and hard, and they should have the security of an exception
from IP mandates should they feel that such a choice is in their best
The US and EU are playing an unprincipled cat-and-mouse game as the
expiration of the existing transition period draws near (June 30,
2013). Formally, the US and EU say that they do not yet have official
policies on the LDC extension request. Nonetheless, they are meeting
with LDCs almost every week trying to talk them out of what the LDCs
are entitled to - an automatic extension upon proper request. In essence,
the EU and US are trying to force LDCs to bid against themselves:
"Why can't you accept a standstill clause - you did before;"
"Why do you need a longer rather than a shorter extension;"
"If you want to weaken the no-rollback clause, you have to shorten
your extension request."
Instead of going on the record with their unreasonable demands, powerful
US and EU negotiators in Geneva are using one of the classic bad faith
tactics - they are trying to bully LDCs into submission with the unauthorized
threat of a veto - one they don't actually have under Article 66.1,
which states that extensions "shall" be granted.
Behind the scenes, the US and EU are also trying to get the WTO secretariat
to do some of their dirty work. They are trying to create a dynamic
where the LDCs are constantly having to re-defend the fully defended
request they have already submitted. The US and EU are trying to orchestrate
it so that it seems that the LDCs are also saying "no",
being unreasonable - when in fact the unreasonable demands and behind-the-scenes
bullying of the US and EU are never exposed and aired in public.
If the US and EU believe that LDCs are not entitled to extensions
when requested and properly motivated, they should be forced to cite
support for that position. If the US and EU think that a standstill
clause is required, they should either point to textual authority
in TRIPS that supports that position or seek an amendment to TRIPS
to impose one.
If they think that LDCs must be satisfied with short, serial extensions,
they should be required to prove how short extensions actually advance
technological and development capacity. But, the US and EU are not
honest enough to use good faith tactics. They would rather hide behind
a smoke screen of deniability and use back-room, strong-arm tactics
and time pressures to engineer a capitulation that will be recast
as a benevolent, consensual agreement.
Let's hope that the LDCs will remain firm and continue to demand the
unconditional extension that is their right.
(* Professor Brook K. Baker is with Northeastern University School
of Law's Program on Human Rights and the Global Economy, and is Honorary
Research Fellow, University of KwaZulu Natal, Durban, South Africa.
This article first appeared in IP-Health Digest Vol. 37 Issue No.
9 and is reproduced here with the author's kind permission.) +