Jul 27, 1988

THIRD WORLD CALLS FOR ADHERENCE TO MANDATE ON TRIPS.

GENEVA, JULY 25 (IFDA/CHAKRAVARTHI RAGHAVAN) -- Third world countries in GATT have expressed concern at attempts of the industrialised countries to widen the mandate on intellectual property issues, and have warned against such attempts.

The concerns of third world countries in this behalf were conveyed by India’s Amb. Shrirang P. Shukla at the meeting of the Group of Negotiations on Goods (GNG), the overall body supervising the Uruguay round GATT MTNS.

Earlier Monday, the statement was considered at a meeting of the informal group of third world countries in GATT, and reportedly met with the approval of all participants excepting for Israel and Hong Kong.

The negotiations on the Trade-Related aspects of Intellectual Property Rights (TRIPS), Shukla told the GNG, was "one of the most sensitive and complex" areas of negotiations, and "a very carefully drafted mandate" was agreed upon at Punta del Este "so as not to enter into the substantive elements of intellectual property protection".

As clearly underlined in statements made at Punta del Este after adoption of Ministerial declaration on goods, "GATT is not the proper forum for elaboration of substantive standards on intellectual property".

"We have been unable to make progress in these negotiations due to the growing insistence on the part of some participants to go beyond the mandate by proposing the creation within the GATT of new norms and standards which are totally alien to its principles and objectives and also enforcing them through the GATT dispute settlement mechanism", Shukla pointed out.

Since the negotiations in TRIPS was being conducted under aegis of the GNG, third world countries considered it appropriate to draw attention to the GNG to these problems.

"If such tendencies to distort the mandate persist in the TRIPS negotiations, it would be extremely difficult to arrive at a common negotiating basis", Shukla warned.

Though these concerns had been raised on several occasions in the TRIPS negotiating group by a number of participants, they had not been addressed.

The over-riding objective of the TRIPS negotiations was "to reduce distortions and impediments to international trade", and to ensure that "measures and procedures to enforce intellectual property rights do not themselves become barriers to legitimate trade".

The modalities for pursuit of these objectives had also been laid down in the declaration: negotiators had been asked, "to aim to clarify GATT provisions, and elaborate as appropriate new rules and disciplines", relating to TRIPS.

Separately, negotiators had also been asked "to develop a multilateral framework of principles, rules and disciplines dealing with international trade in counterfeit goods, taking into account work already undertaken in the GATT".

Both these tasks, the Indian delegate further pointed out, were to be carried out "without prejudice to other complementary initiatives that may be taken in the World Intellectual Property Organisation (WIPO) and elsewhere to deal with these matters".

The scope of the mandate, the statement further said, flowed from the overall objectives of GATT, namely "liberalisation of international trade in goods as they cross national boundaries".

A fundamental aim of the Uruguay round MTNS was to bring about further liberalisation and expansion of international trade in goods, so as to contribute to the development and growth of the economies of all participants.

The general exceptions outlined in article XX of the GATT, Shukla noted, recognised the right of each Contracting Party to apply measures necessary to secure compliance with laws or regulations, including laws and regulations for protection of certain categories (...), which are not inconsistent with GATT provisions.

National laws and regulations in the area of intellectual property were administered by governments "reflecting the political, social and economic objectives and scientific and technological developments in their countries".

The balance between right to use of intellectual property and public interest was "a major consideration and particular to each country".

Article XX, Shukla further pointed out, required that "such measures are not applied in a manner, which would constitute a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail, or a disguised restriction on international trade".

The Punta del Este declaration specifically recognised these rights of Contracting Parties and underlined the need "to ensure that measures and procedures to enforce intellectual property rights do not themselves become barriers to international trade".

The Indian delegate noted that the importance and necessity of discouraging trade in counterfeit goods was well recognised. An effective contribution to the attainment of this goal could be made through elaboration of a multilateral framework of ruled to deal with international trade in counterfeit goods.

The work already done in GATT could be helpful in this regard. However, no progress had been made so far in this area.

For progress to be realised on TRIPS, it would be necessary "to adhere faithfully to the mandate contained in the Ministerial Declaration and to bring to an end the ongoing attempts at exceeding that mandate", Shukla declared on behalf of the third world countries.

"It is also important to flow the understanding of that mandate reflected in the negotiating plan adopted on January 28, 1987. Developing countries therefore urge, once more, all participants in the TRIPS negotiations to adhere faithfully to the mandate so as to enable the negotiating group to advance on its work".