Doha: A Developing Country Perspective Author(s): Biswajit Dhar Source: Economic and Political Weekly, Vol. 36, No.

46/47 (Nov. 24-30, 2001), pp. 4343-4345 Published by: Economic and Political Weekly Stable URL: http://www.jstor.org/stable/4411373 . Accessed: 23/04/2013 02:51
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Doha: A Country

Developing Perspective

Thepressure exerted by the developing countrieswas a notable feature of the Doha ministerialconferenceof the membercountries of WTO.The declaration on TRIPsagreementand public health adoptedby the conference was the most conspicuousoutcomeof such pressure. On the other hand, the inclusionoffive new issues in the negotiatingmandateof WTOwas a reminderthat the developingcountriescould expect theirpressure to go so far and nofurther. In makingtheirpreparationsfor the negotiationson the workprogrammeagreed upon at Doha, the developingcountries have to bear this reality in mind.
involving the,prices of HIV/AIDS drugs in Africa. The drugmultinationalsshowed he fourth ministerial conference of no concern for the suffering in some of theWorldTrade was the poorest countries of the world, putting Organisation held in Doha with the fledgling their lust for profits as the sole objective of their operations. The issue came to a organisation facing its worst crisis in its shortlife. Very few had any doubtsthat head following sustained civil society anotherfailed attempt on the partof the action in the affected regions which was tradeministersof the membercountries complemented by governments in every to arriveat a work programme for the part of the world voicing their concerns would seriouslyundermine over the exploitation that their populace organisation its credibility. This was an outcomethat could face at the hands of the companies none of the membercountrieswas pre- in their battle for survival. The most signipared to accept, more so the countries ficant development resulting from this from the developingworld.These coun- campaign was that the WTO was forced trieswouldsee unilateral actionby thebig to convene a special discussion on the in the global tradingsystem as public health concerns, or the lack of it, brothers a certaintyif the last remnantsof the in relation to the TRIPs agreement.
BISWAJIT DHAR

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multilateralism thattheWTOhascome to were cast away. If, in the end, represent the outcomeof the Dohaministerial conference looks unbalanced,it could be countries entirelybecausethedeveloping felt thatthey have few realisticoptions. theDohaministerial declaraAlthough tion does not seem to articulate the concernsthatdeveloping countries hadraised on severalissues,particularly thoserelatin which the Uruguay ing to the manner Round agreements have been implemented,thereis one significantoutcome of the conference, on viz, the declaration TRIPsagreement andpublichealth.This declarationwas includedprimarilybecause of the pressure brought by the developingcountrieson the issue of access to medicines at affordableprices. These countrieshave been focusing on thisissueeversincetheirworstfearsabout the impact of the exercise of patent whichwas strengthened in the monopoly, on TRIPs,came truein cases agreement

TRIPs and Public Health

The declaration on TRIPs agreement and public health takes on board most of the concerns of the developing countries in a forthrightmanner.Several points made in this declaration merit consideration. In the first instance, the ministers have emphasised that the agreement on TRIPs needs to address the grave public health concerns afflicting many developing and least developed countries.While acknowledging that intellectual property protection holds the key to the development of new medicines, the ministers have also expressed concerns about its effect on prices. This consensus on the impact on prices of medicines resulting from intellectual property protection should be considered as one of the major achievements of the developing countries in the Doha ministerial. But above all, the declaration states that the TRIPs agreement

shouldnot preventWTO membersfrom takingmeasuresto protectpublichealth. The ministers havegone on to affirmthat the agreement "canand shouldbe interpretedin a mannersupportiveof WTO members'right to protectpublic health to promoteaccess to and, in particular, medicinesfor all". For addressingtheir public health related concerns, WTO members havebeengiventherightto take recourse to compulsory licensing,anissue whichhasbeenthesticking pointbetween the developedand the developingcountries for quite sometimenow. The declaration on health issues also extendsthe periodof implementation of TRIPsagreement by the least developed countries(LDCs) insofaras it relatesto patents,by another10 years, i e, up to 2016. This may be an appropriate stepto take given the lack of capacitiesof the LDCs to fulfil theircommitments under the TRIPs agreement,but it is also a measure thatpotentially dividesthedeveloping countries. Theimportance of theDohadeclaration on TRIPs agreementand public health, whichseeksto changethe basicemphasis of oneof themostcontentious agreements in the Uruguay Roundpackage,has to be seen in another context.The declaration arenot signifiesthattheWTOagreements cast in stoneandthatthereis a possibility of re-moulding theagreements shouldthe developingcountriesbring to beartheir collective strength on issues thatare significant from their point of view. The experiencethatthe developingcountries havegainedwhiledealingwiththeagreement on TRIPs should come handy for thesecountriesas they seek to meet their commitments to the WTO. Thegainsmadeby developing countries on the by gettingsome vitalclarifications on TRIPshave,however,been agreement balanced by some majorconcessionsthat have had tomake. Themostsignificant they of theseis the inclusionof five new issues in the negotiatingmandate of the WTO. on fourof these,investment, Negotiations competition policy, government procurement and tradefacilitation, are slatedto conference beginafterthefifthministerial of the WTOin 2003, while issues centerwould be negotiated ing on environment in the immediatefuture. Investmentand Competition Policy FromIndia'spoint of view the acdeptance of negotiationson investmentand set competition policywithinthecontours 4343

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by the rules of the multilateral trading system would be considered a major concession. This not withstanding the fact that the negotiations do not begin immediately but are slated to begin after two years. What would make the ministerial declaration particularly unacceptable to the critics is that the proposed multilateral framework for investment could include elements about which India has had strong reservations. One such issue is pre-establishment national treatment which takes away the rightof the national governments to screen foreign investment. In what appears to be a concession to the developing countries, the declaration indicates that a GATS-type positive list approach would be adopted. This means that countries would be free to offer sectors or industries for the application of the multilateral investment rules. Besides pre-establishment national treatment, the other elements of the proposed frameworkcould include the following core elements: (i) development provisions; (ii)exceptions and safeguards; and (iii) consultation and settlementof disputes. The declarationalso indicates that the framework for dealing with investment should reflect in a balanced mannerthe interestsof the home and the host countries and the right of the countries to regulate investment in their nationalinterest.The elements of the framework thus defined may appeal to those developing countries whose major objection to the framework that was proposed by the OECD countries in the form of the multilateral agreement on investment (MAI) was that the development concerns of developing countries were not given due attention. From the point of view of the countries sponsoring the .move for the adoption of the investment rules this may turn out to be the most important selling point. In a similar vein, theissue of competition policy has been addressed by proposing a narrow framework on agreed multilateral rules. It has been proposed that the rules on competition policy would focus on the clarification of elements of a possible multilateral framework aimed at enhancing the contribution of competition policy to international trade and development. The core principles for the multilateralset of rules as indicated in the declaration include (i) transparency, (ii) non-discrimination and procedural fairness and (iii) provisions on hardcore cartels. And, again, as with the proposed framework for investment, it has been indicated that the development 4344

concerns of countries at various stages of development would be takeninto consideration while the multilaterally accepted set of rules for competition policy are worked out. Along with investment and competition policy developing countries would be thrust into negotiations on two issues, viz, government procurement and trade facilitation, after the fifth ministerial conference. The draft declaration had proposed that negotiations on these issues should begin immediately and the postponement of the negotiations could be seen as minor concessions to the developing countries.

policies while regulatingimportof shrimps. The US, in exercise of Section 609 of Public Law 101-162, restricted imports,of shrimp harVestedwith fishing equipment such as shrimp trawl nets not equipped with turtleexcluderdevices orTEDs. These devices, in the view of the US, virtually eliminate accidental deaths of sea turtles in shrimp trawl nets, thus avoiding further endangerment of sea turtles. The complainants had maintained that the US's laws discriminated against the import of shrimps from their countries since they were not using turtle excluding devices. The impact of this decision could be farreaching. Besides giving sanction to the inclusion of environmental issues in the Trade and Environment WTO, the decision has threatened to set a precedent for inclusion of new issues in It is on the issue of environment that the the WTO without formal negotiations impact of the Doha ministerial declaration having taken place. In what seems to be would be felt most acutely. The declara- an attempt to provide a post facto justition makes several references to the en- fication for the inclusion of environment, vironment issue, a close reading of which the Doha declaration provides for the indicates that the linkage between trade negotiations on trade and environment in and environment has been accepted by the the post-Doha work programme of the WTO and on terms that does not benefit WTO. There are,however, several disturbthe developing countries. ing features of the environment agenda as The significance of the trade-environ- proposed by the ministers. ment nexus that the declaration seeks to The first of these is that the negotiations establish is clear from its preambularstate- on trade and environment have been split ments which affirm that WTO members into two parts. The first part of the negocan take action for the protection of the tiations, which would take place in the environment. The declaration states that months ahead, would be broad-based. In "under WTO rules no country should be this phase the negotiations would focus on prevented from taking measures for the the relationshipbetween the existing WTO protection of human, animal or plant life rules and the specific trade obligations or health or of the environmentat the levels included in the multilateral environment it considers appropriate..." (emphasis agreements (MEAs). These negotiations added). The declaration also Indicates that would also complement the marketaccess "measures taken to address such concerns negotiations by looking at the possibilities shall not be used for protectionist pur- of reducing tariffs and other non-tariff poses". However, this direction provided measures on environment-friendly goods to the WTO members may not prove very and services. effective since the US has shown increasThe second part of the negotiations on to use environment as a trade and environment could take place if ing tendency disguised form of protectionism in recent the committee on trade.and environment years. The US has succeeded in getting (CTE) of the WTO recommends the 'desome of its domestic laws on environmental sirability of negotiations' on specific protection upheld by the WTO dispute elements, which currentlyareunderconsidsettlement body in a recent dispute brought eration in the CTE. These elements include by India and three other developing coun- (i) the effect of environmental measures tries. In the much discussed shrimp-turtle on market access, (ii) consideration of the case, the appellate body ruled thatthe US' s relevant provisions of the agreement on implementation of its sea turtleprotection TRIPs insofar as it affects the environlaw is fully consistent with WTO rules. ment, and (iii) labelling requirement for This rulingby the appellatebody was made environmental purposes. These are issues in response to the complaint made in in which India and other developing counOctober 1996 by india, Malaysia, Thai- tries have immediate interest.Forinstance, land and Pakistan against the US law, the effect of environmental measures on claiming that it was inappropriatefor the market access has assumed importance in US to prescribe its national conservation the light of the appellate body decision on Economic and Political Weekly November 24, 2001

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case. Similarly,the in- achieve some degree of success on this the shrimp-turtle food criticalissue. modified ingenetically trade creasing has made labelling an issue that most AcquiringESTs has been anotherpicountrieshave to considerseriously. quantproblemfor the developingcounbe tries andlittle changecan realistically TRIPs and Biodiversity expectedon this in the nearfuture.This have stemsfromthefactthattheministers of of transfer betweenenvironment agreedto remitthe problem The relationship and the agreementon TRIPs has two technologyto developingcountriesto a The first concernsthe rela- working dimensions. groupto examinetherelationship of technology. tionshipbetweenthe conventionon bio- betweentradeandtransfer of this working logical diversity (CBD) and the TRIPs The recommendations agreement.The second is the issue of group,to be madein the fifth ministerial sound tech- conference,would form the basis of intransferof environmentally to developing flows of technology which arecov- creased of nologies(ESTs),many ered by intellectualpropertyprotection. countries. countries musthavewished hasbeenmore dimension Whiletheformer Developing would ministerial declaration that the Doha work stated in the programme explicitly their difficultiesin two agreeon the agreementon TRIPs, the latter articulate dimensioncould be dealt with as a part ments: (a) textiles and clothing and The reasonfor thisexpecof the CTE work programme. (b) agriculture. The relationship between CBD and tationwas thatsome of the countrieshad a fair degree of evidence to TRIPshas been the topic of discussionin marshalled were worldeversincetheagree- showthattheirlarger thedeveloping trading partners in letter the agreements menton TRIPswas acceptedas a partof not implementing commitment. Theissueatstake andspirit.Inthecase of textilesandcloththebinding was the growingevidenceof the exploi- *ingdevelopingcountrieswere expecting removal forthetardy fromthe somedownpayment of biodiversity, tation particularly the of industrialised in the rich sources countries, quotas by developing genetically In agriculture, countries,by the transnational corpora- whichhasnotmaterialised. of some of theirkey tions,oftenwitha view to obtainintellec- effectivearticulation tualproperty rightsand hence monopoly concernswouldhave helpedthe developin the ongoingreviewof the over the products thatwere ing countries in the market on agriculture. The main eledevelopedusing these resources.Along agreement havebeeneluciwere mentsof the negotiations thesecorporations withbiodiversity, but these do not of datedin the declaration, also indulgingin the misappropriation some of the key associatedknowledgethat has been part take into consideration countries andcultural fabric proposals made of the socio-economic bythedeveloping to the WTOcommitof thepeoplein thedevelopingworld.The in theirsubmissions Forinstance,developstrongerregime of intellectualproperty tee on agriculture. on TRIPs countries that the India, have proincluding ing agreement protection had introduced providedfurtherfillip to posed that exceptions under the 'green Theargument thatmany box' and the 'blue box' subsidiesshould thesetendencies. made in the notbe allowedwhilecalculating have countries aggregate developing council for TRIPs,the body responsible measureof supportand thatall formsof should be reined in.Thisproposal has subsidies of the agreement, for the monitoring mustallow has not been considered.Further,in an beenthattheTRIPsagreement Commuto placatethe European countriesin which the biodiversityand attempt associatedknowledgeoriginateto exer- nity, the declaration providesan opportucise theirrightsto preventmisappropria- nity to the EC, which has been guilty of of subsidies, outthelargest amount Itis theCBDwhich handing tionof theseresources. with its of their to continue over the countries policies subsidising rights gives in the guise of ruraldevelopandit is therefore imperative agriculture biodiversity on TRIPsis amended ment and environmental thatthe agreement protection. The areain which most countrieswere to make it compatiblewith CBD. The was market access has statedthatthe expectingnegotiations declaration ministerial between for non-agricultural products.This was explorationof the relationship andthe CBD would evidencedby the fact that almost every theTRIPsagreement be part of the review of the agreement prominent WTO member across the had some propos71.1.Itwouldthere- development under article mandated spectrum fore requireanotherconcertedaction on als to make as regardsissues that these neededto cover. In the end, the part of the developing countriesto negotiations
Economic and Political Weekly November 24, 2001

thedirection on this givenby theministers issueprovides to thedifferrepresentation ent viewpoints.Whileincludingdeveloping countryconcernson peak tariffsand in the proposednegotiatariffescalations also mentionsthat tions, the declaration the productcoverage "shall be comprehensive and withouta prioriexclusions" which, according to the industrialised countries, should be the focus of the Itis further thatthe indicated negotiations. would take into consideration negotiations of developing "specialneedsandinterests and least developedcountryparticipants, less thanfullreciprocity through including in reduction in accordance commitments, with the relevant provisions of Article XXVIIIbis of GATT 1994".This article recognises"the needs of less-developed countriesfor a more flexible use of tariff to assist theireconomicdeveprotection lopment and the special needs of these countriesto maintaintariffs for revenue It furtherstatesthat"allother purposes". relevant circumstances, including the fiscal, developmental, strategicandother needsof thecontracting concerned" parties will also be taken into account. Two issues will be crucialfor the developing countries in thecontextof thenegotiations on marketaccess. The first is the extent to which industrialisedcountries show willingnessto bringdown theirrelatively of exportinterest high tariffson products to developing countries.The second is thatdeveloping countries would flexibility theirmarketaccess enjoy in re-balancing offers, which would include effecting increases in the bound rates of duties, withouthavingto pay a heavy price for doing so. For the lines thathave been writtenas its final outcome, the Doha ministerial conference hadplentymorethathave not been documented, but must at the same timebe recognised. The pressures exerted by the developingcountriesfor changes in themultilateral rulesseemquite trading remarkable, coming as they did duringa phase when the political weight of the industrialised world could be broughtto bear.While the resultsof these pressures weremanifestin thedeclaration on TRIPs andpublichealthadopted atthe agreement conclusionof the ministerial conference, it must be admitted that the pressures could only go so farandno more.It is this realitythatdevelopingcountriesneed to takeintoconsideration astheymakepreparationsfor the negotiationsbased on the workprogramme thatthe ministershave agreedto. 13

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