Mar 21, 1989

WIDE-SPREAD THIRD WORLD OPPOSITION ON TRIPS ISSUES.

GENEVA, MARCH 17 (IFDA/CHAKRAVARTHI RAGHAVAN) A large number of third world countries would appear to have spoken up in GATT consultations this week about their opposition to consideration of substantive issues of intellectual property protection in the Uruguay round, but their willingness to do so in appropriate fora - WIPO, UNCTAD and UNESCO.

The U.S., supported by the EEC, Japan and other industrial nations have been trying to rewrite the Punta del Este mandate in the area of "Trade-Related Intellectual Property Rights" (TRIPS).

The main objective in this is to force the third world to negotiate and put in place a multilateral framework of rules and principles in GATT dealing with substantive norms and standards for intellectual property protection, and their national enforcement and use of GATT mechanisms for dispute settlement.

In essence, the U.S. and other industrial nations wish to reverse more than a century-old international regime, which leaves many of these issues within national jurisdiction, balancing carefully the monopoly rights of inventors against the public interest of society.

The differences between third world nations and the industrial nations on this issue was one of the points on which the GATT, Director-General, Arthur Dunkel, in his capacity as chairman of the official level meetings of the Trade Negotiations Committee (TNC) was asked to hold consultations.

The wide-spread opposition on the TRIPS issue, hitherto painted in western media as confined to Brazil, India and a couple of other countries, appears to have surprised both the GATT officials and leading industrial countries.

The U.S. reportedly sought to counter this by arguing that though a number of participants were opposed to negotiating substantive norms inside the Uruguay round, countries accounting for nearly 85 percent of world trade favoured it.

The Uruguay round process is supposedly on the basis of GATT practices, which means decision-making by consensus. While the U.S. insists on consensus and thus its right to say "no" and block things not acceptable to it, the U.S. has also been trotting this concept of "trade-weight" whenever it finds a large number of third world countries opposing its moves.

The idea of GATT Director-General Arthur Dunkel that everything should be discussed, "without prejudice" to the position of protagonists about the mandate and scope of GATT, and that the issues of "GATT ability" of any agreement could be considered at the end of the Uruguay round apparently was not agreeable to the third world countries.

Dunkel reportedly has said that he would bear all the views into account in presenting his own paper, and its merit could be that "it will please nobody".

Dunkel reportedly indicated that he will present his ideas on all the four subjects of deadlock in the Uruguay round (agriculture, textiles, safeguards and TRIPS), at the meeting of heads of delegations of the TNC, set for the evening of April 22.

Dunkel, in his capacity as chairman of the official level meetings of the TNC has been holding high level consultations, since mid-January, separately on each of the four subjects.

He is due to hold separate consultations on April 21 and 22 on agriculture.

In his efforts to find solutions, Dunkel so far appears to have adopted the "power" approach - leaving it to the U.S. and EEC to solve bilaterally the agricultural dispute, and hoping on the basis of this (and any concessions that it would provide to third world agricultural exporters in the Cairns Group) to break up the solidarity of the third world on the other three issues - textiles, safeguards and TRIPS.

The TRIPS consultations were held on Thursday and Friday, but without making any progress to bridge the major north-south gap on this issue.

On Thursday, Egypt reportedly presented a paper, drawn up by a number of third world delegations in consultations among themselves. The paper had been considered by the informal third world group in GATT. where it reportedly had received wide support.

The paper presented by Egypt in essence delineated the work to be done in the Uruguay round in terms of the mandate, from those relating to substantive norms and dispute settlement procedures to be dealt with in international organisations having jurisdiction over these matters, such as WIPO, UNCTAD and UNESCO.

Hong Kong, South Korea and Israel reportedly distanced themselves from this approach, with South Korea however also moving away from its earlier stand of full support to the U.S. move to negotiate multilateral rules on norms, etc., in the GATT.

But all other third world delegations who spoke supported the ideas in the Egyptian paper, according to participants.

Besides, Egypt, others who spoke in support reportedly included Nigeria, Mexico, Tanzania, Chile, Colombia, Argentina, Pakistan, Jamaica, India and Brazil.

The Asian countries however did not speak. There have been some reports that these countries are divided, and hence have decided not to voice any opinion at this stage.

The consultations showed the widespread opposition among third world countries to the attempts of the U.S., EEC and other industrial nations to deal with substantive norms in intellectual property protection, and establish such international norms to be adopted by all countries and for their enforcement through GATT mechanisms.

There has been an effort by GATT secretariat, as well as by the U.S. and leading industrial nations and the western media to portray the opposition as confined to a couple of countries like Brazil and India. This was very much in evidence at Montreal, and since then in Geneva.

The European Community would appear to have argued that the position in the paper presented by Egypt was "a step backward", from the third world position at Punta del Este. The United States claimed that since the mandate had asked negotiations to take into accounts "the need to promote effective and adequate protection of intellectual property rights", the TRIPS Group should negotiate substantive norms.

Third world countries have however rejected this argument, pointing to the negotiating history of this issue through the meetings of the senior officials in 1985 and of the preparatory group, the draft in the Colombian-Swiss text that was before the Punta del Este meeting (on which most of the Uruguay round mandate in goods was based), and the final mandate in TRIPS that was approved by ministers.

Egypt and a number of other third world countries reportedly rejected the U.S. arguments.

Egypt also reportedly pointed out that the EEC itself in one of the papers presented in the TRIPS Group had suggested that the issue of substantive norms of intellectual property could be considered separately.

India reportedly pointed out that the TRIPS Group could go on, discussing the scope of the mandate for the next two years, as it hall been doing for the last two years, which is what would happen if they were to proceed to discuss these issues "without prejudice".

Rather than indulging in such a futile exercise, the third world countries had put forward a positive proposal to deal with the concerns voiced by the industrial countries.

The industrial countries wanted a comprehensive approach and discussion of substantive norms and standards. The paper presented by Egypt tackled both these questions, and specified the fora to deal with them.

India also underscored the development dimensions and said that the envisaged parallel actions in UNCTAD, UNESCO and WIPO should have due regard to developmental, technological and public interest needs of countries, in particular third world countries.

The U.S. is also reported to have claimed that Brazil had opposed consideration of substantive norms in intellectual property protection in the WIPO and had only been agreeable to consider procedural matters,

Brazil reportedly repudiated this, and insisted it had a consistent stand from the outset. The Brazilian delegation had objected to the substantive issue of norms being considered in terms of harmonisation of patent laws of countries, but had said that the substantive norms would have to be addressed in terms of the revision of the Paris Convention.