Show of flexibility to stave off blame?

by Chakravarthi Raghavan

Doha, 12 Nov 2001 - The dynamics of the WTO’s 4th ministerial conference, mid-day on its penultimate day (Monday), appears to have reached the point where the two major trading entities may be trying to project an air of flexibility and attempting to salvage something, enough at least to fend off the burgeoning domestic civil society attacks on governments over the way they have sided with corporations against the poor and their health.

In what may or may not portend progress (since words have different meanings to different people), in the consultations over the Declaration on TRIPS and Public Health, the second option to para 4, the one sought by US, Switzerland and a few others that in fact takes away even the current limited flexibility, has been given up.

There has been some accord on the first sentence of that para, “Nothing in the TRIPS Agreement shall prevent Members ....”, with the ‘shall’ being changed to something semantically more presentable. However, the negotiators were stuck on the second sentence, whether the mandatory ‘shall’ be used could be reduced (as the US hopes) to another ‘best endeavour’ clause by using ‘should’, and other such semantics.

Public interest NGOs like Medicin Sans Frontier, Oxfam, Third World Network and others around here have rejected such a compromise, and view it as an attempt to mislead the developing world, and the public in the North.

However, the African group, India and others appeared not to have ‘bought’ the compromise, and did not seem ready to accept anything that has no value added, or that did not ensure their public health needs and rights.

Attempts to bribe, cajole and arm twist them have not so far succeeded - though there are still 36 hours to go.

The EU has floated in the ‘consultations’ a compromise as bad, if not worse than that of the US (on the second option): “having examined the flexibilities of some provisions of the TRIPS Agreement, we agree that WTO members can use these flexibilities to address public health crisis, such as HIV/AIDS without prejudice to the rights and obligations of members.”

The last phrase tries to take away what is given in the first part, even if much of this would be subject to how panels use this; but unless the Doha experience brings about a change in the WTO secretariat, the secretariat and its panel manipulative processes of guiding panels and appellate bodies, may make all this worthless.

However, some developing country negotiators said the talks were going in the right direction.

There was a feeling late Sunday evening that the protagonists on new issues have more or less given up hope of pushing them on to a new round, and are attempting to salvage something through a work programme, trying to use the argument that a second successive failure of a WTO conference would make the system a ‘non-player’ for a long time.

At a late Sunday night meeting (that ended about 2am local time) of about 20-30 ministers, USTR Robert Zoellick and the EC Commission’s Pascal Lamy attempted to project an air of flexibility, but privately Monday morning, some of the participants appeared to be not impressed.

The US is willing to show flexibility on ‘implementation’, except naturally on the concession in the implementation about growth-on-growth provisions(and in fact it is a very minor concession to the developing world, in that the agreement sanctioning all the current restrictions will end on 31 December 2004).

And the EC is willing to be flexible if it can get some language on environment.

Meanwhile, India has put forward specific alternative formulations (to the Harbinson texts) on all Singapore issues - all of them requiring continuance of the study groups, and requiring them to present their reports to the Fifth Ministerial Conference. (See separate report on the discussions on the Singapore issues).

In a day of fast-moving developments, the ACP group (African, Caribbean and Pacific group of countries), after two extended meetings, where one or two attempted to persuade the group to take a more flexible position on new issues, were in effect reportedly beaten back, and the group would now appear to have put forward the detailed alternative formulations to various paras of the Harbinson text, which they had put forward at Geneva, but which Harbinson had refused to forward along with his text.

As in Seattle, this group of countries, all small economies, appear to be getting ready to challenge the attempts to railroad a consensus, this time through the ‘green men’ instead of the ‘green room’.

However, there are still 24 hours to go. – SUNS5008

The above article first appeared in the South-North Development Monitor (SUNS) of which Chakravarthi Raghavan is the Chief Editor.

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