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Alam, Shawkat --- "Trade and Environment Linkage in the Post-Uruguay Round Context" [2004] JCULawRw 3; (2004) 11 James Cook University Law Review 36


TRADE AND ENVIRONMENT LINKAGE IN THE POST– URUGUAY ROUND CONTEXT

SHAWKAT ALAM*

* LL.B (Hons), LL.M; PhD Candidate and Tutor, Division of Law, Macquarie

University, Sydney, Australia; Associate Editor, LexisNexis Australia. This paper

is based on a chapter of my PhD thesis submitted to the Division of Law, Macquarie University. I would like to thank Professor M Rafiqul Islam who has reviewed earlier drafts of the chapter and guided me with helpful comments as my supervisor. I also offer my thanks to Dr HA Amankwah and anonymous referees for this journal for helpful comments on an earlier draft of this article.

INTRODUCTION

The issues associated with the link between trade and the environment are very complex and evolve in a dynamic manner, involving various states and other actors in the process. The development of this linkage often focuses on the North–South dynamics of international debates on trade and the environment. Renewed interest in trade and the environment has generated new concerns about the effects of environmental regulations/regimes upon trade-induced economic development, particularly in developing countries. This phenomenon has assumed and will continue to assume paramount significance in international trade negotiations. The magnitude of the debate arising from trade and environment policy tensions indicates that trade and environmental issues will play an increasingly large role both within and beyond the World Trade Organization (WTO).

At the heart of these issues is a fundamental conflict of interests between the North and the South. In the North, environmental protection issues are seen as matters to be addressed in order to protect the global environment, while in the South, environmental protection issues are considered to be linked with the economic development of the nations concerned.

While developing countries initially resisted the linkage between trade and environment, they later accepted the reality that economic development cannot be separated from its environmental consequences. Economic development, in order to be sustainable, needs to take into account environmental concerns arising from the developmental process.

______________________

Developing countries have found renewed interest in global efforts to address environmental concerns, and they refer to their capacity-building issues in this regard. The success of developing countries’ efforts in addressing environmental issues depends largely on the financial and technological assistance of developed countries (the promoters of environmental regimes). Nevertheless, developing countries are against the inclusion of trade and environment issues in the WTO.

Developing countries oppose inclusion of trade and environment issues in the WTO as not favourable to their economic interests. The inclusion of trade-and-environment-related issues in the WTO also means that developing countries could be forced to engage in negotiations on trade and environment issues without an explicit inclusion of environment in the negotiating mandate.[1] Unless resolved in a satisfactory way, these issues have the potential to dictate the terms of trade negotiations in the multilateral trade regime and may further exacerbate the North–South tensions that exist at the trade–environment interface.

This article examines the current state of the trade–environment linkage in the WTO. Such an examination necessarily focuses on the development of the trade–environment linkage in the WTO Ministerial Conference, the WTO’s highest decision-making body, in the post–Uruguay Round context.[2] This article further examines the implications of this development for future negotiations. It aims primarily to highlight the difficulties that developing countries are encountering in dealing with these new developments and the future dimensions of this complex trade-and- environment linkage in the context of multilateral trade negotiations.

I DEVELOPMENT OF TRADE–ENVIRONMENT LINKAGE IN THE WORLD

TRADE ORGANIZATION MINISTERIAL CONFERENCES

There have been five ministerial conferences to date.[3] Meeting once every two years, the ministerial conference has the authority to take decisions on all matters under any of the multilateral trade agreements.[4] While the Ministerial Declaration covers a wide range of issues, this section focuses upon only the provisions/issues relating to the trade-and-environment linkage.

A The 1996 Singapore Ministerial Conference

The First WTO Ministerial Conference was held in Singapore from 9 to 13 December 1996 to assess progress of the implementation commitments of the member states and to review the ongoing negotiations and work programmes under the WTO.

The Ministerial Declaration which was the outcome of the conference recognised the objective of the multilateral trading system as ‘[the promotion of] sustainable growth and development while contributing to a more stable and secure climate in international relations’[5] (Paragraph 2).

The Declaration addressed issues relating to the implementation of the WTO agreements and recognised that full implementation of those agreements would comprise an important contribution to the achievement of sustainable development.[6] The contribution of the Committee on Trade and Environment (CTE) was recognised, and the Declaration approved the continuation of the work of the committee under the existing terms of reference with the participation of environmental as well as trade experts in its deliberations.[7]

The Ministerial Declaration also acknowledged the importance of the integration of developing countries in the multilateral trading system. The significant commitments that were undertaken by developing countries were recognised. The difficulties developing countries were facing in complying with their commitments were acknowledged. In line with this recognition, the member states made commitments to improve the availability of technical assistance to developing countries under the agreed guidelines.[8]

The First WTO Ministerial Conference ended with misgivings. The division of the North and the South over many issues was starkly apparent. While developed countries and politicians welcomed the result of the meeting as an ‘outstanding success’, others, particularly the representatives of developing countries, described the results as ‘a shared disappointment’.[9] The meeting resolved very few issues between developed and developing countries, and it was predicted that the issues raised would continue to create disagreement in future negotiations to be held in Geneva.

During the conference, developing countries expressed concern about the benefits that they were meant to receive from their commitment to the Uruguay Round agreements. Although the Declaration recognised the difficulties that these countries were facing, it was decided that the ministerial conference ‘should concentrate on a review of the past two years’ progress in “digesting” the results of the Uruguay Round.’[10]

Developing countries did not consider that environment should be an issue for the ministerial conference. They believed that economic growth could help them to contribute to environmental protection. In plenary statements, a number of developing countries expressed concern about the potential of environmental measures to be used as disguised protectionism. For example,

Malaysia said the indiscriminate use of labeling schemes undermines developing countries’ exports. Nigeria noted that poverty is the most significant cause of environmental degradation and trade liberalisation will yield environmental dividends.

The different perspectives of the North and the South with regard to the linkage between trade and the environment were evident in the First WTO Ministerial Conference. The divergence of views indicated that multilateral trade negotiations would face a rocky road if these differences were not dealt with. For this to occur, the WTO needs to ensure that the commitments and promises made to developing countries in the Uruguay Round agreements are duly met and that its developing member states are not deprived of the benefits arising from the liberalisation of their markets. Since trade and environment are tied to the socio-economic development of developing countries, the special situation of these countries in addressing such issues needs to be taken into account before environmental protection issues are included in the WTO negotiating agenda. The question of whether the WTO ministerial conference would be able to respond to this issue in the future remained open until the next ministerial conference was held in Geneva in 1998.

B The 1998 Geneva Ministerial Conference

The Geneva Ministerial Conference was held from 18 to 20 May 1998. There was no significant development in relation to the trade–environment linkage as the Geneva Ministerial Conference was a token one in view of the celebration of the 50th anniversary of GATT. In the Pre-Ministerial Meeting, efforts were made by many environmental groups as well as by the United States to establish the linkage between the goals of world trade and improving the environment. President Clinton, while emphasising the harmonisation of the goals of trade with those of sustainable development, suggested that ‘the trading system of the 21st century must never become a race to the bottom in the fields of environmental protection, labour standards and consumer protection.’[12] Japan, Canada, the United States and the European Union (EU) also wanted to have a high-level meeting of the WTO Committee on Trade and Environment in an attempt to speed up the progress of the CTE and save it from its longstanding deadlock. However, the primary outcome of the Geneva Ministerial Conference, the Geneva Declaration, only expressed the commitment of member states to continue to improve their ‘efforts towards the objectives of sustained economic growth and sustainable development’[13] (Paragraph 4).

It is relevant to note that although developing countries were pressing for issues such as their market access concerns and implementation difficulties to be addressed as preconditions before linking trade with the environment, progress in this regard was minimal. Developing countries were perceived as not being ready for issues such as trade-and-environment linkage, and so environmental NGOs and developed countries continued to pursue their objective of linking trade with the environment. For example, US environmental groups requested that President Clinton use the 18–20 May GATT (General Agreement on Tariffs and Trade) 50th anniversary celebration as an opportunity to insist on renewed efforts to bring about the trade–environment linkage.[14]

Developing countries did not accept these developments behind the scenes and reiterated their concerns regarding their implementation difficulties. Several developing countries, including Cuba and Uganda (for the least developed countries [LDCs]), highlighted the marginalisation of developing countries, in particular LDCs, in the world trading system and the need to focus on this issue and redress the asymmetry between developed and developing countries while drawing upon the benefits of trade liberalisation.

In his address to the Geneva Ministerial Conference, Director-General Mr Renato Ruggiero said, recognising the need for implementation of the WTO agreements: ‘Full implementation is essential to the credibility of our system — and its potential to carry the weight of future responsibilities.’[15]

The Geneva Ministerial Declaration referred to the need for commitment to the full and faithful implementation of the WTO agreements; however, developed countries made no specific promises in this regard. As a result, developing countries formed the view that no new issues should be raised until the contentious issues of the previous negotiations were properly resolved.

C The 1999 Seattle Ministerial Conference

The Seattle Ministerial Conference saw significant disagreements between developed and developing countries and could not resolve the distrust, tensions and conflicts of interests between them concerning the trade and environment linkages. As a result, the Seattle Ministerial Conference failed. It was suspended on 3 December when delegates failed to reach a consensus on the text of the Ministerial Declaration. As Das points out:

There were deep divisions of opinions, beliefs and expectations among the United States, the EU (of 15) and Japan on the one hand, and among the industrialised and developing economies on the other.[16]

Failure to reach any consensus in the Third WTO Ministerial Conference in Seattle reflected the frustration and anger felt by developing countries and environmentalists over the issues of development and environment.

Developing-country resentment had been growing for years, and came to a head in Seattle.[17] The environmental community was also disappointed at the very slow progress in the CTE, which they criticised as ‘nothing more than a distraction from the real agenda’[18]

Since former EU Trade Commissioner Sir Leon Brittan first put forward the idea of a Millennium Round of trade talks, developing countries have resolutely resisted the placing of new issues on the negotiating agenda until prior Uruguay Round commitments are duly implemented. Developing countries believed that:

The Uruguay Round had been aggressively sold to the developing world as very much to their benefit. Experience after five years of implementation has showed that to be far from the case.[19]

They believed that they were exploited and excluded from their fair share of the benefits. This sense of injustice and unfairness has united them against new issues that are not concerned with their interests in international trade negotiations.

Before and during the ministerial conference, developing countries categorically pointed out the imbalances and inequities in WTO agreements that deprived them of their expected benefits from trade liberalisation. They pointed especially to the review of several WTO agreements such as those on agriculture, textiles, trade-related investment measures, trade-related intellectual property rights, subsidies and anti- dumping. Central concerns of developing countries regarded the WTO agreements on textiles and agriculture, in which areas developing countries had a clear competitive and comparative advantage yet were unable to realise the benefits the agreements offered because of problems associated with implementation. Regarding textiles, developing countries argued that limited or little implementation of developed countries’ commitment in this area under the Uruguay Round Agreement have ‘resulted only in a minimal increase in market opening while reinforcing imbalances in competition between developed and developing countries.’[20]

Martin Khor from the Third World Network argued that it would be dishonest to speak of a ‘development round’ if further liberalisation were undertaken before these implementation concerns were addressed.[21]

Developing countries firmly rejected renewed attempts to introduce trade- and-environment issues into future trade negotiations which they believed would further damage the negotiating prospects on other pertinent issues that were particularly linked to products and services. The primacy of the environmental agenda of developed countries would also create deep divisions and distrust between rich and poor countries which would not bode well for future consensus on the formation of a work programme. This might further exacerbate the use of trade measures on environmental grounds.

In the Seattle Ministerial Conference, a number of developing countries submitted proposals highlighting their concerns: Kenya (WT/GC/W/233), Bangladesh (WT/GC/W/251), Pakistan (WT/GC/W/126), Dominican Republic–Honduras–Pakistan (WT/GC/W/255), Cuba–Dominican Republic–Honduras–Pakistan (WT/GC/W/163) and Cuba (WT/GC/W/387).[22] Najam summarised their concerns as follows:

This fear springs from the assumption that the environment is largely a concern of the developed countries and is likely to be introduced into WTO discussions to placate their domestic environmental and industry lobbies in those countries. In particular, (a) Provisions in multilateral environmental agreements (MEAs) might be used to ‘trump’ WTO rules, and (b) the imposition of environmental standards (including process standards) could become new trade barriers to thwart developing country exports.[23]

Despite resistance from developing countries, the EU and US pushed hard for various mechanisms to link trade and environmental protection in the Seattle Ministerial Conference. The US proposal (WT/GC/W/304) expressed the need for institutional reform to pursue trade liberalisation ‘in a way that is supportive of high public health and environmental standards.’[24] Meanwhile, the EU pushed for environmental references throughout the whole text of the Ministerial Declaration. Robert Madelin of the EU delegation outlined the position of the EU on the environment accordingly:

We do not want to put all our environmental demands in just one paragraph, as the nature of the drafting process is such that entire paragraphs get deleted all the time, and we wouldn’t want to lose all our demands in this area in one fell swoop.[25]

Consequently, in the (third draft) draft Ministerial Declaration, the link between trade and the environment was recognised in the text concerning sustainable development:

PRINCIPLES GOVERNING THE NEGOTIATIONS

………

[Sustainable development: negotiations shall address environmental concerns with a view to achieving sustained economic growth and sustainable development, and enhancing the synergies between trade liberalization, environmental protection and economic development. …][26]

………

STRUCTURE, ORGANIZATION AND PARTICIPATION

………

[[Advisory] role for Committee on Trade and Development and Committee on Trade and Environment: within their respective mandates, the Committee on Trade and Development and the Committee on Trade and Environment will each provide a forum to identify and debate the developmental and environmental aspects of the negotiations, including the synergies between trade liberalization, economic development and environmental protection. The work of the two bodies would be complementary and would help to ensure that the negotiations reflect the preamble of the WTO Agreement on acting in accordance with the objectives of sustainable development and responding to the needs of the developing countries and especially of the least-developed countries. … [We note the intentions of some Members at a national level to.[review the potential environmental effects] [undertake a sustainability review] of the negotiations as an important means of identifying trade and environmental linkages.] … [27]

Since there was no agreement, the draft Ministerial text was dropped in the end. But it appears that environmental considerations were paramount in the working draft and that they may be resurrected in future negotiations.

In essence, demonstrations from all environmental groups in Seattle and also the pressure from developed countries on the inclusion of the environment in the negotiating agenda changed the reality, in that developing countries at one stage needed room for environmental considerations for their own sake. Najam argues, ‘If anything, the events at the Third Ministerial Meeting of the World Trade Organization (WTO) suggest that the issue … will have to be dealt with sooner rather than later’,[28] while Von Moltke maintains:

The current political situation in Europe and North America reflects a reality that will prove inescapable . . . it is hard to imagine any future trade agreement . . . which does not seriously address environmental concerns.29

The power and gravity of the Seattle street protests by environmental and labour groups is a reminder that environmental and labour-related issues are gaining intensity and importance globally. These protests have implications for both the WTO and developing countries. For developing countries, inclusion of environmental issues in trade negotiations is only a matter of time. Developed countries and environmental and labour groups, all pressing for the inclusion of environmental issues in trade negotiations, share little concern for the interests of developing countries and have no prescriptions for their concerns. Rather, to some extent, developing countries were ‘portrayed as generally “anti-environmental” and certainly as the main hurdle to the incorporation of environmental linkages with trade regimes’.[30] Developing countries need to work against this misconception and should highlight their environmental priorities, which are certainly different from those of developed countries. They should come up with their own environmental agenda, one which focuses more on sustainable development and their developmental priorities based on the principle of common but differentiated responsibility.

Failure to form a consensus on the Ministerial Declaration text was a serious blow for the WTO. As Malini Mehra, Director of the People’s Decade for Human Rights Education, argued:

Seattle has dealt a slap to the WTO and the organisation must fundamentally reform itself and reassert the centrality of its social mission to bring benefits to its entire membership and the environment.[31]

Martin Khor said that, of the possible causes for the Seattle debacle,

the more basic cause was the non-transparent and undemocratic nature of the WTO system, the blatant manipulation of that system by the major powers, and the refusal of many developing countries to continue to be on the receiving end.[32]

The trade–environment debates in Seattle are intricately linked with the North–South debate in the WTO. This ‘reordered North–South interplay was indeed the critical relationship for the failure at Seattle’.[33] Therefore the WTO needs to reorganise its priorities to take into account the concerns of developing countries in the negotiating process. Disappointments and the disagreement of developing countries with regard to the negotiating process must be dealt with in a manner that secures transparency and greater participation of developing countries in the process. The concerns expressed by developing countries in relation to implementation issues of the WTO agreements (especially the agreements on agriculture, textiles and anti-dumping) must be addressed before the inclusion of any ‘new issues’ on the built-in agenda. Unless the situation is improved, the present undemocratic, non-inclusive and highhanded ‘green room’ approach to the production of a ministerial text at any cost will result in anger and frustration on the part of developing countries — who have sufficient numbers to foil any such attempt in the future.

D The 2001 Doha Ministerial Conference

After many failed attempts, developed countries and environmental groups finally succeeded in placing trade-and-environment issues on the negotiating agenda of the Doha Ministerial Conference held in 2001. Developing countries had no choice but to grudgingly accept this mandate. Accepting the trade-and-environment provisions in the Doha Declaration, developing countries realised that it would not be appropriate to resist the agenda, and that they should instead act proactively with their own agenda to link the environmental protection issue with the broader framework of sustainable development.

As a result, there is a real prospect of interpretation and debate regarding the implications of the agenda for the achievement of sustainable development in developing countries. While developing countries accepted the agenda, they remained sceptical about its implications and the use of its provisions by their developed counterparts.[34] While the Doha Declaration recognised the issues that were the subject of developing countries’ concerns, the recognition and inclusion of those issues in the Declaration does not guarantee the elimination of those concerns. The extent and breadth of environmental issues is likely to keep the tension between developed and developing countries alive over coming trade negotiations.

The Doha Ministerial Declaration provided a platform for the commencement of new negotiations and the continuation of ongoing multilateral trade negotiations.[35] The Doha Declaration was a breakthrough that set the stage for trade-and-environment debate within the WTO. For the first time it put the environment on a negotiating agenda agreed to by WTO members at the multilateral level. It addressed many pressing issues including the relationship between WTO rules and multilateral environmental agreements (MEAs), the elimination of trade barriers, eco- labelling and the effect of environmental measures on market access, and the relationship between the TRIPs Agreement and the Biodiversity Convention. The Doha Declaration brought the trade-and-environment debate into the forefront of trade negotiations. The critical aspects are outlined below. 1 Trade and Environment Provisions of the Doha Ministerial Declaration

The Preamble to the Doha Declaration[36] reaffirmed the commitment of the parties to the objective of sustainable development as stated in the Preamble to the Agreement Establishing the WTO (Marrakesh Agreement). It further elaborated the rights of parties to

tak[e] measures for the protection of human, animal or plant life or health, or of the environment at the levels it considers appropriate, subject to the requirement that they 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, and are otherwise in accordance with the provisions of the WTO Agreements.’[37]

The Preamble reiterated the belief that the objectives of the multilateral trading system and the ‘protection of the environment and the promotion of sustainable development can and must be mutually supportive.’ 2 Negotiations on Trade and Environment (Article 31) and World Trade

Organization Rules (Article 28)

To enhance ‘the mutual supportiveness of trade and environment’, article 31 of the Doha Declaration agreed to negotiations on:

(i) the relationship between existing WTO rules and specific trade obligations set out in multilateral environmental agreements (MEAs) …;

(ii) procedures for regular information exchange between MEA Secretariats and the relevant WTO committees, and the criteria for the granting of observer status;

(iii) the reduction or, as appropriate, elimination of tariff and non-tariff barriers to environmental goods and services.

As well, the Declaration agreed to negotiations on WTO rules and disciplines, in the context of which

participants shall also aim to clarify and improve WTO disciplines on fisheries subsidies, taking into account the importance of this sector to developing countries. (paragraphs 28 and 31)

It is relevant to note that negotiations on the above items, forming part of the ‘single undertaking’ package, were to be completed by 1 January 2005. 3 Instruction to the Committee on Trade and Environment (Article 32)

In article 32, the Doha Ministerial Declaration instructed the Committee on Trade and Environment (CTE) to pursue work within its current terms of reference and specifically to give particular attention to:

(i) the effect of environmental measures on market access, especially in relation to developing countries, in particular the least-developed among them, and those situations in which the elimination or reduction of trade restrictions and distortions would benefit trade, the environment and development;

(ii) the relevant provisions of the Agreement on Trade-Related Aspects of Intellectual Property Rights [TRIPS Agreement]; and (iii) labelling requirements for environmental purposes.

The CTE was to identify whether or not there was any need to clarify relevant WTO rules on the above issues and to report to the Fifth Session of the Ministerial Conference in Cancún. The CTE was also to recommend future action to be taken on these issues and whether they could be placed on the negotiating table. 4 Recognition of Technical Assistance and Capacity Building for Trade and Environment

The capacity of developing countries to address environmental concerns depends upon the transfer of environmentally sustainable technologies from developed to developing countries.[38] Both the world trade regime and the environmental regime have recognised this position of developing countries. Agenda 21 and the Rio Declaration on Environment and Development made provisions for the transfer of technology. However, little progress has been made toward the implementation of those provisions.

Article 33 of the Doha Declaration recognised

the importance of technical assistance and capacity building in the field of trade and environment to developing countries, in particular to the least developed among them.

Following this recognition, in article 37 the Doha Declaration also agreed to

an examination, in a Working Group under the auspices of the General Council, of the relationship between trade and transfer of technology, and of any possible recommendations on steps that may be taken within the mandate of the WTO to increase flows of technology to developing countries.

In article 38, the Declaration further affirms:

… The delivery of WTO technical assistance shall be designed to assist developing and least-developed countries and low-income countries in transition to adjust to WTO rules and disciplines, implement obligations and exercise the rights of membership, including drawing on the benefits of an open, rules-based multilateral trading system.

In article 41, the Declaration instructed the Director-General of the WTO to report to the Fifth Session of the Ministerial Conference in Cancún with regard to ‘the implementation and adequacy of these commitments in the identified paragraphs’. 5 Miscellaneous Provisions Relevant To Trade and Environment

The Doha Declaration also • considers ‘the non-trade concerns reflected in the negotiating proposals submitted by Members’ in the context of negotiations on Agriculture, and confirms that non-trade concerns (non-trade concerns include protection of the environment) ‘will be taken into account in the negotiations as provided for in the Agreement on Agriculture’

(paragraph 13) and • instructs the Committee on Trade and Development and the Committee on Trade and Environment, ‘within their respective mandates, [to] each act as a forum to identify and debate developmental and environmental aspects of the negotiations, in order to help achieve the objective of having sustainable development appropriately reflected’ (paragraph 51). 6 Relationship between the Agreement on Trade Related Intellectual

Property Rights (TRIPs) and Biodiversity

The objectives of the UN Convention on Biological Diversity[39] (CBD) are ‘the conservation of biological diversity, the sustainable use of its components and the fair and equitable sharing of the benefits arising out of the utilization of genetic resources …’.[40] Many of the provisions of the Convention are affected directly or indirectly by intellectual property rights (IPRs).[41] Howard Mann and Stephen Porter argue:

An essential tenet of the TRIPs Agreement is that IPRs are private rights. On the other hand, one of the basic principles of the Convention on Biological Diversity is that states have sovereign rights over their natural resources, thus subordinating private rights, such as IPRs, to the public objectives of the agreement.42

To many developing countries, an intellectual property protection mechanism translates into a blockade of the transfer of technology and a further impediment to economic development.[43] The protection of IPRs through the WTO TRIPs Agreement[44] places developing countries in a disadvantageous situation in terms of access to technology, and/or the modernisation or upgrading of existing technology levels.[45] This is ironic, given that the TRIPS Agreement recognised the special needs of developing countries to create their own technological base.[46] Article 7 of the TRIPs Agreement states that the protection of IPRs is intended to promote not only technological innovation but the ‘transfer and dissemination of technology’.

Article 67 obliges developed members to provide on request and on mutually agreed terms and conditions technical and financial assistance to developing countries. Article 66.2 obliges developed country members to provide incentives to enterprises and institutions in their territories for the purpose of promoting and encouraging technology transfer to least developed countries. However, several developing countries argue that the agreement, and more specifically its implementation, does not necessarily promote the dissemination of environmentally sound technologies or the protection of biodiversity. Although the economic benefits and supremacy of developed countries have been overly protected and secured by the TRIPs Agreement, their obligations in relation to technology transfer and the dissemination of environmentally sound technologies to developing countries are found only in the ‘best endeavour’ clauses and remain unfulfilled.

In accordance with the TRIPs Agreement, an invention must be new, involve an inventive step and be capable of industrial application in order to be patentable. It has been argued that the TRIPs Agreement seems to contemplate only the Northern industrialisation model of innovation. It fails to address the more informal, communal system of innovation through which farmers in the South produce, select, improve and breed a diversity of crop and livestock varieties.[47] The intellectual property of Southern farmers is thus denied recognition, and hence protection.[48] The TRIPs Agreement, with its overly strong IPRs, together with extended protection of the scope and duration of these rights, has failed to protect the interests of developing countries. Instead of fostering innovation and the dissemination of environmentally sound technologies to least developed countries, it has further increased the industrialised world’s grip on technology. As a result, the TRIPS Agreement represents a policy of ‘technological protectionism’. It has also failed to protect indigenous knowledge and community rights and has been criticised as a ‘knowledge blockade’ of developing countries.

Its negative effect on access to technology, dissemination of environmentally sustainable technology, investment flow, incentives to community innovators, and development potentials will certainly undermine the capacity and efforts of developing countries to achieve the objective of sustainable development.

This situation will lead to potential conflicts between the objectives of the TRIPs Agreement and those of the Convention on Biological Diversity.[49]

This is an area that will be highly contentious in the next round of trade negotiations and that may aggravate the disparity and tension which currently exists between developed and developing countries. The Doha Declaration made clear the importance of examining the relationship between the TRIPs Agreement and the Convention on Biological Diversity. Article 19 of the Declaration calls for examination of the relationship between the TRIPS Agreement and the Convention on Biological Diversity, and Article 32 calls for future negotiations on relevant provisions of the TRIPS Agreement if recommended by CTE.

However, despite this recognition, many hold the view that the need is not for further study but for definite negotiations on practical means to include the objectives and principles of the CBD into the WTO.[50] 7 Doha Development Agenda: Rhetoric and Reality

The Doha Declaration included many contemporary trade and environment issues in the future negotiating agenda. This agenda appears to reflect significant issues of concern to both developing and developed countries but was in fact the result of a carefully designed compromise package on trade and environment issues. Doha recognised the concerns of developing countries relating to implementation, agriculture, market access for non- agricultural products, and special and differential treatment for developing countries. Nevertheless, concessions on the issues relating to developing countries’ interests were not free from conditions. During the preparations for the Doha negotiations, the EU, US and Japan made it clear that they were willing to address the concerns of developing countries (such as implementation issues) only as part of a comprehensive round, including ‘new issues.’[51] In fact, these concessions were made ‘in exchange for stronger language on the environment, investment and competition policy.’[52]

However, developing countries have yet to taste the benefits of the Doha Declaration. In most instances, issues relating to the interests of developing countries have been passed on to the relevant WTO bodies for further study. The Doha Declaration recognised the importance of most of the issues, but did not provide any specific commitments for their resolution. Developing countries want some sort of binding commitment from developed countries on duty-free and quota-free market access for their products, which will help them gain the capacity to address environmental problems. Developing countries’ market access problems are recognised in the Declaration, but developing countries see this issue as closely linked with the implementation issues they have raised. Most of the issues seem to involve no more hortatory than legally binding commitments.[53]

Article 16 of the Doha Ministerial Declaration calls for negotiations to reduce tariff and non-tariff barriers to trade in non-agricultural products. Such barriers might include environmental measures based on production and processing methods, including such things as parts per million (PPMs) of different ingredients. These negotiations will have a definite impact upon environment-related measures that impact on trade. From a trade policy and developing country perspective, the issue is ensuring that ‘like product’ criteria and factors do not create an open-ended basis for unrestricted differentiation of products based on PPMs. Such differentiation would raise serious and legitimate concerns for market access, for developing countries in particular. This challenge remains a live one.[54]

Article 31(i) of the Declaration put the clarification of the relationship between MEAs and WTO provisions on the agenda. It did not specifically mention the MEAs in question. In the absence of the clear definition of MEAs, developing countries apprehend that ambiguity in this area might enlarge the scope and scale of the topic. If all MEAs that have trade- related provisions are included in the negotiating agenda for the purpose of article 31(i)), such an enlarged agenda will challenge the limited negotiating capacity of developing countries. It is well known that developing countries have very limited technical expertise and resources with which to tackle new and emerging issues such as the environment. The sheer number of MEAs and the complexity of the areas they deal with will certainly place a greater demand on developing countries to find the requisite resources and technical expertise to understand the issues and contribute meaningfully.

Developing countries also have concerns with regard to the status of the WTO rules as against MEAs. They are concerned that under the heavy influence of developed countries, MEAs may eventually take precedence over WTO rules. If this happens, it could give developed countries a powerful weapon with which to protect their markets against the exports of developing countries — as has already been demonstrated in the case of food safety standards.[55]

Developing countries also have concerns about how environmental goods and services will be defined for the purpose of article 31(iii). At present, negotiations on environmental goods and services centre on goods of interest to developed countries. Developing countries are also concerned about the definition of ‘environmental measure’ for the purpose of article 32(i). Developing countries apprehend that developed countries are likely to broaden the scope of the above areas to achieve protectionist goals, and that definitions could consequently become technical barriers to trade. They believe that in the absence of clarity, agenda items could be captured by interest groups who might use them to expand the agenda in future rounds at the cost of the interests of developing countries.

The Doha Declaration, in articles 32(ii) and 32(iii), specifically addressed the concerns of developing countries regarding market access and problems associated with the use of environmental measures to prevent the products of developing countries from accessing the markets of developed countries on grounds of environmental and technical standards. However, developing countries are still concerned that inclusion of the trade-and- environment agenda might at some point include the ‘precautionary principle’ in the negotiated text, and that that principle may then be used as an arbitrary barrier to, and disguised restriction on, trade. In the past, developed countries, especially the EU, have on several occasions used precautionary reasoning to impose bans on technologies in spite of an absence of evidence of harm.[56] This substantiates the fear of developing countries that, although the precautionary principle was not included in the Doha Declaration, developed countries, particularly the EU, will try to include the principle in the negotiating text in the future as disguised trade measures to restrict the products of developing countries from access to the markets of developed countries.

From the negotiating history, it is evident that the EU was the main proponent of including trade-and-the-environment on the negotiating agenda against strong opposition from developing countries. The EU has successfully included items such as the relationship between MEAs and WTO provisions and the reduction or elimination of tariffs and non-tariff barriers to environmental goods and services in the negotiating text. Of all the items that are included in the negotiating text, developing countries requested only the issues relating to market access and TRIPs.[57] This indicates that developed countries will expand the agenda on trade-and- environment if the opportunity arises.

The Doha Round was launched to regenerate confidence in the multilateral trading system. The primary focus of the Doha Round was to bring development and growth to developing countries and so it was also known as the Doha Development Agenda. Despite the broader WTO membership’s recognition of the problems faced by developing countries, ‘there were no shared perceptions on how to solve that problem, nor on what the precise “development” dimension of the Doha development agenda would be’.[58]

Two years after the Doha Declaration, little progress had been made towards the achievement of its development objectives. The Cancún Ministerial Meeting offered an opportunity to shed further light on the issues raised in Doha by taking stock of progress achieved since then. Unfortunately, nothing significant was accomplished at Cancún: it was a fiasco.

Although Doha cannot be regarded as having fulfilled all the aspirations and demands of developing countries, it was ‘in many ways more favourable to their interests than the accomplishments of all previous WTO Ministerials.’[59] Developing countries’ concerns and interests were recognised in many areas such as intellectual property rights and public health, market access in agriculture, anti-dumping and the implementation of Uruguay Round commitments on textiles, technological assistance and capacity building. At the same time, new issues such as trade-and- environment were included despite the resistance of developing countries.

It was the beginning of a long struggle for developing countries to have their voices heard in the multilateral trading system and to make this system more equitable and fair for all members irrespective of their economic and political clout. The ultimate success of the Doha Round depended on the implementation of the commitments that were made by developed countries to their developing counterparts. Progress in the next round would have shown the political willingness of developed countries to make the promise of the ‘development’ round a reality.

E The 2003 Cancún Ministerial Conference

The Cancún Ministerial Conference was held in Mexico from 10 to 14 September 2003. It was intended to review the progress on the Doha Agenda. The meeting ended unsuccessfully after a failure to reach a consensus amongst the members. After the Doha Round there was optimism about the Cancún Ministerial Conference: in Doha, all member states pledged to take into account the needs and interests of developing countries and to place them at the centre of the work programme of the WTO. However, the Cancún Ministerial Conference failed to take into account the concerns of developing countries. At the centre of the fatal disagreement was the failure to make any progress on agriculture. Developing countries resisted proposals from the EU and the US in relation to negotiations on agriculture and put forward their own alternative draft text as a basis for negotiation. Differences over the issues could not be resolved because of lack of willingness on the part of developed countries to put concessions on the negotiation table.

The Cancún Round was launched with acrimonious disagreement between developed and developing countries. The differences between them were further widened by the reckless pursuit of the issues raised in the Singapore meeting by developed countries despite strong opposition from developing countries. The EU, in particular, ‘stated that the Singapore Issues were part of the single undertaking, and consequently needed to be addressed as part and parcel of the package that needs to be taken to Cancún.’[60] Press reports and subsequent statements by those present at the meeting claimed that ‘the apparent and proximate cause of the Ministerial’s collapse was a failure to agree on launching formal negotiations on the so-called Singapore Issues.’[61]

Developing countries pointed out their grievances over the Uruguay Round and emphasised the need for implementation of the commitments of developed countries. They held the view that the new round of trade negotiations would not bring any positive result unless the existing discrepancies and imbalances in the negotiating items were removed.

Developing countries united over the disagreement with the North. They formed many alliances and groups with common interests. Among them Brazil, India and China made an effective alliance among more than 20 developing states. They organised themselves even before the Cancún meeting, making a firm decision not to support the launch of negotiations on the four Singapore issues. They succeeded in their attempt, and the goal of the Cancún negotiation did not come to fruition. Overall, ‘intransigence of the industrial economies on agriculture and of that of the developing economies on the Singapore [issues] finally led to the failure of the Fifth Ministerial conference in Cancún’.[62]

II THE WAY FORWARD

Developing countries are really at a crossroads after the failure of the Cancún Ministerial. The Doha Declaration recognised their issues and concerns in part, and provided them with an opportunity to realise the benefits promised to them in the Uruguay Round agreements by removing imbalances and inequities in the existing agreements. However, the implementation of the commitments made in the Doha Declaration remains uncertain. The Doha Declaration recognised the need for the integration of the LDCs into the global trading system. This integration requires the development of solutions to the problems that developing countries are facing in relation to market access, technical assistance and capacity building. Since the failure of Cancún, the progress on these issues remains uncertain. While the commitment of developing countries to open their markets is binding, the concomitant commitment from developed countries to provide assistance for technology and capacity building remains a rather indeterminate ‘best endeavour’ requirement. The disappointment and disillusionment in the developing world is clear; so is the distrust between rich and poor countries. Developing countries feel both misled and excluded. Given the record in this area, it would be difficult to maintain ‘business as usual’ without gaining their trust. Offering them what was promised in the Doha Declaration could help to achieve this. But this is a remote possibility given the lack of political willingness in developed countries.

During 2002 and 2003, many interlinked and self-imposed deadlines established in the Doha Development Agenda were missed. The chances of reaching an overall agreement in the Doha Round by 1 January 2005 are uncertain. Deadlines for resolving issues in relation to market access, agriculture, and trade-related intellectual property rights have been missed, setting the stage for further frustration and anger in developing countries. The Ministerial meeting in Geneva in late July 2004 did not deal with the issue of trade–environment linkage at all. It was devoted to dealing only with contentious issues of agriculture arising from the Doha Conference.

Many factors contributed to the failure of Seattle and Cancún, but the lesson the international community can learn from these two debacles is that developing countries cannot be sidelined any more in the important decision-making process which involves their future prospects for trade and development. Unlike in the past, agreements cannot be negotiated in a non-transparent manner by the big players; nor can the outcome of the negotiations be imposed upon developing countries. ‘Developing countries have become “full stakeholders” in the system and thus cannot be marginalized from the decision making process.’[63] One former ambassador, expressing the resentment over the negotiating tactics of developed countries, commented:

After the Uruguay Round, the South has awakened, and no matter the pressure put on their ambassadors in Geneva; no matter the procedural sabotage; no matter the mini ministerial … our issues will continue to be on the table, because they reflect our real concerns with respect to a multilateral trading system that in theory promotes free trade but in practice preserves the protectionist measures and policies implemented by the developed countries to the detriment of our products and sectors of interest. [64]

The organised, united and coordinated stand of developing countries and their success in Cancún will mean that they will make an unprecedented effort to ensure that any future multilateral trade negotiations make allowances for their interests. Developing countries seem to have become major stakeholders in the world trade regime and have the power to refuse to negotiate on issues that do not reflect their interest and concerns. This development will undoubtedly challenge and influence the mandate of future ministerial conferences.

III CONCLUDING OBSERVATIONS

The failure of the Cancún Ministerial Conference provokes serious questions about the future direction of the WTO.

The Conference sharpened the stark division and distrust between developed and developing countries at the negotiating table. If these differences continue without any long-term solution, the future of the world trading system will be at stake. The interests and concerns of developing countries warrant searching reappraisal for the continuity of the world trading system.

The world trading system must consider how it can make trade free and fair for developing countries. In the past, developing countries agreed to negotiate in a number of areas with the hope that one day they would have the opportunity to achieve liberalisation of trade in agriculture, textiles and clothing and other areas where they have a special interest and comparative advantage. But in exchange for taking ‘front loaded obligations in TRIPs, TRIMs and in Services, [they] had not received any benefits in textiles and clothing trade or agriculture.’[65] Now developed countries are adamantly pushing their agenda on trade and the environment — which is particularly evident from post-Seattle and Doha experiences.

Negotiations on trade-and-environment issues that fail to take into account the interests and concerns of developing countries will further limit the economic growth of these countries and consequently offer no prospect of improving their situations. The formulation of a trade-and-environment agenda by developed countries with the goal of pursuing their commercial interests under the guise of environmental protection would make developing countries more vulnerable to the power politics of the North. In the past, developed countries have influenced or managed developing countries into accepting unfair deals using a variety of tactics. If developed countries continue to employ such tactics to push their agenda onto the negotiating table and to compel developing countries to accept it, this

will increase the contradictions within the WTO, as well as erode — quite possibly beyond repair — its legitimacy. As the number of people disenfranchised by this crudely unequal globalisation project increases, global civil society resistance can only be expected to increase, and move onto a larger stage.[66]

However, sustainable development can be an integral part of future trade negotiations. For that to happen, the WTO must effectively address power imbalances between the environment and trade/finance, and between developed and least developed/developing countries. The South must have a say in the extent and terms of future negotiations involving trade and the environment. The WTO must adopt an approach that involves the ‘integrated consideration of social, environmental and economic impacts, rather than their separate thematic treatment’ [emphasis in original][67]

Overall, Cancún could be a reason to reassess the Doha mandate. Both developed and developing countries should appreciate the imperative of working together to examine the real issues behind the failure of Cancún. Developed countries need to fulfil their commitments and focus on the concerns of developing countries. Developing countries need also to come up with a positive and constructive agenda. Resisting agendas with their numerical strength is unlikely to create opportunities or secure their interests in the world trading system. It is in the interests of both developed and developing countries to make the world trading system operational.

There is a need to review the progress of the Doha Development Agenda and to thoroughly reassess the development implications of the WTO agreements. Removing the inequities and imbalances in the WTO agreements and fulfilling the promises made in Doha could help developing countries to tackle the trade–environment linkage without sacrificing their development priorities. An emphasis on development which produces only empty promises will aggravate the conflicts between developed and developing countries with the possibility of another backlash regarding the North–South agenda at the intersection of trade and the environment. As the Secretary-General of the United Nations, Mr Kofi Annan, asserts:

Unless we convince developing countries that globalization does indeed benefit them, the backlash against it will become irresistible … that would be a tragedy for the developing world, and indeed for the world as a whole. [68]

It is in this spirit that it is suggested here that the issues associated with the trade–environment linkage should be confronted and dealt with at the next WTO Ministerial Conference in Hong Kong.


[1] Veena Jha and Rene Vossenaar, Breaking the Deadlock: A Positive Agenda on Trade, Environment and Development? (1999) United Nations Committee on Trade and Development (UNCTAD) Discussion Paper 10/19/1999 5 <http://r0.UNCTAD.org.trade_env/test1/publications/positive.pdf> at 4 April 2005.

[2] The World Trade Organization (WTO) website explains the Uruguay Round:

Most of the WTO agreements are the result of the 1986–94 Uruguay Round negotiations, signed at the Marrakesh ministerial meeting in April 1994. There are about 60 agreements and decisions totalling 550 pages. Negotiations since then have produced additional legal texts such as the Information Technology Agreement, services and accession protocols. New negotiations were launched at the Doha Ministerial Conference in November 2001. The “Final Act” signed in Marrakesh in 1994 is like a cover note. Everything else is attached to this. Foremost is the Agreement Establishing the WTO (or the WTO Agreement), which serves as an umbrella agreement. Annexed are the agreements on goods, services and intellectual property, dispute settlement, trade policy review mechanism and the plurilateral agreements. The schedules of commitments also form part of the Uruguay Round agreements.

<http://www.wto.org/english/docs_e/legal_e/legal_e.htm> at 4 April 2005.

[3] Singapore, 9–13 December 1996; Geneva, 18–20 May 1998; Seattle, 30 November – 3 December 1999; Doha, 9–13 November 2001; and Cancún, 10–14 September 2003. In late July 2004 a special ministerial meeting was held in Geneva to discuss only agricultural trade liberalisation issues raised in the 2001 Doha Ministerial Conference.

[4] The structure of the Ministerial Conference was set up in Article IV paragraph 1 of the Marrakesh Agreement Establishing the World Trade Organization 15 April 1994: (1994) 33 International Legal Materials 1125; WTO website <http://www.wto.org/english/docs_e/legal_e/legal_e.htm> at 4 April 2005.

[5] Singapore Ministerial Declaration adopted on 13 December 1996: (1997) 36 International Legal Materials 224; WTO website <http://www.wto.org/english/thewto_e/minist_e/min96_e/wtodec_e.htm> at 4 April 2005.

[6] Ibid paragraph 16.

[7] Ibid.

[8] Ibid paragraph 13.

[9] International Centre for Trade and Sustainable Development (ICTSD), ‘A Brief Analysis of the Ministerial Conference’ in WTO Ministerial Conference <http://www.ictsd.org/ministerial/singapore/story9-13-12-96.htm> at 5 April 2005.

[10] Ibid.

[11] Ibid.

[12] ICTSD, ‘Clinton Endorses Call For High-Level WTO Meeting On Trade– Environment And Calls For WTO Openness’ (1998) Bridges Weekly Trade News Digest Coverage of the Geneva Ministerial 1998 2:18 May 18 <http://www.ictsd.org/ministerial/geneva/story17-05-98.htm> at 5 April 2005.

[13] Geneva Ministerial Declaration adopted on 20 May 1998: WTO website <http://www.wto.org/english/thewto_e/minist_e/min98_e/mindec_e.htm> at 5 April 2005.

[14] ICTSD, above n 12.

[15] WTO website <http://www.wto.org/english/thewto_e/minist_e/min98_e/anniv_e/dg_e.htm> at 6 April 2005.

[16] Dilip K Das, ‘Debacle at Seattle — The Way the Cookie Crumbled’ (2000) 34:5 Journal of World Trade (October) 181, 186.

[17] Mark Halle, Seattle and Sustainable Development (2003) International Institute for Sustainable Development (IISD)

<http://www.iisd.org/trade/wto/seattleandsd.htm> at 6 April 2005.

[18] Ibid.

[19] Ibid.

[20] ICTSD, ‘Implementation’ subsection of Bridges Weekly Trade News Digest Coverage of the Seattle Ministerial 1998 3:46 24 November 1999 <http://www.ictsd.org/ministerial/seattle/story24-11-99.htm#Environment> at 7 April 2005.

[21] Khor was outlining the central message of the NGO Seattle Declaration, signed by more than 3000 organisations: ICTSD, ‘In Brief’ section of Bridges Daily Update 30 November 1999 <http://www.ictsd.org/ministerial/seattle/wto_daily/991130_eng.htm> at 7 April 2005.

[22] ICTSD, ‘Environment’ section of Bridges Weekly Trade News Digest Coverage of the Seattle Ministerial 1998 3:46 24 November 1999, above n 20.

[23] Adil Najam, ‘Trade and Environment After Seattle: A Negotiation Agenda for the South’ (2000) 9:4 Journal of Environment & Development 410.

[24] ICTSD, above n 22.

[25] Quoted by ICTSD in ‘U.S., EU on Sustainable Development and Environment’ section of Bridges Daily Update on the Third Ministerial Conference 1 December 1999 <http://www.ictsd.org/ministerial/seattle/wto_daily/991201_eng.htm> at 7 April 2005.

[26] Draft Seattle Ministerial Declaration — Third Draft, para 25 <http://www.ictsd.org/ministerial/seattle/Declaration3.pdf> at 18 April 2005.

[27] Ibid para 26.

[28] Adil Najam, above n 23, 406.

[29] K von Moltke, ‘Trade and the Environment: The Linkages and the Politics’

(1999) Paper presented at the Roundtable on Trade and Environment, Canberra Australia 25 August 1999, 7–8, quoted by Adil Najam, above n 23, at 405–6.

[30] Adil Najam, above n 23, 410.

[31] ICTSD, ‘New Trade Round Postponed; Ministerial Meeting Suspended’ in Bridges Daily Update 3 November 1999 — see website <www.ictsd.org/ministerial/seattle/wto_daily/final.htm> at 7 April 2005.

[32] Martin Khor, The Revolt of Developing Nations (1999) Third World Network, 6 December 1999 <http://www.twnside.org.sg/title/revolt-cn.htm> at 7 April 2005.

[33] Ernest H Preeg, ‘The South Rises in Seattle’ (2000) 3 Journal of International Economic Law, 184.

[34] See S Subedi, ‘The Road From Doha: The Issues for the Development Round of the WTO and the Future of International Trade’ (2003) 52 International and Comparative Law Quarterly 432.

[35] Key Points Arising out of the 4th WTO Ministerial Conference from a Development Perspective (2002) United Nations Institute for Training and Research UTA/UNITAR 2002 International Trade Campus 17–20 June 2002 <http://www.un.int/unitar/trade_campus/doha_key_points.htm> at 10 January 2004.

[36] Paragraph 6 of the Doha Ministerial Declaration adopted on 14 November 2001, WT Doc WT/MIN(01)/DEC/1 20 November 2001; WTO website <http://www.wto.org/english/thewto_e/minist_e/min01_e/mindecl_e.htm> at 7 April 2005. For the Marrakesh Agreement see above n 1.

[37] Doha Ministerial Declaration, above n 36.

[38] For a detailed analysis on the importance of technical assistance and capacity building in the area of trade and environment, see generally Matthew Stilwell, Environment, Trade and Sustainable Development — An Overview of Key Issues Arising from the World Summit on Sustainable Development and the WTO Doha Work Programme (2003) UNEP Background Paper prepared for the March 2003 Capacity Building Meeting on Environment, Trade and Sustainable Development for the Latin American and Caribbean Region <http://www.unep.ch/etu/mexico/Overview_WSSD.pdf> at 8 April 2005.

[39] Convention on Biological Diversity [CBD], opened for signature 5 June 1992, 1760 UNTS 79 (entered into force 29 December 1993); UNEP CBD website <http://www.biodiv.org/convention/articles.asp> at 8 April 2005.

[40] Ibid, art 1.

[41] Preambular statement; art 15 (Access to Genetic Resources); art 16 (Access to and Transfer of Technology); art 19 (Handling of Biotechnology and Distribution of its Benefits); art 8 (In-situ Conservation) (which includes recognition of the contribution of indigenous and local communities in the conservation of biodiversity) of CBD, above n 39. For a comprehensive analysis of these issues see below, notes 45, 50, 51 and 52 of this article.

[42] Howard Mann and Stephen Porter, The State of Trade and Environment Law 2003: Implications for Doha and Beyond (2003) IISD and CIEL (Center for International Environmental Law).

[43] E Su, ‘The Winners and the Losers: The Agreement on Trade Related Aspects of Intellectual Property Rights and its Effects on Developing Countries’ (Fall 2000) 23 Houston Journal of International Law 169.

[44] The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement, Annex 1C of the Marrakesh Agreement Establishing the World Trade Organization) came into effect on 1 January 1995. Text and overview <http://www.wto.org/english/docs_e/legal_e/legal_e.htm#TRIPs> and <http://www.wto.org/english/tratop_e/trips_e/intel2_e.htm> respectively at 8 April 2005.

[45] For a discussion on the implications of the TRIPs Agreement for developing countries, see MR Islam, International Trade Law (1999) 190; R L Ghana, ‘Has Creativity Died in the Third World? Some Implications of the Internationalization of Intellectual Property’ (1995) 24 Denver Journal of International Law and Policy 109; Biswajit Dhar and RV Anuradha, ‘Access, Benefit-Sharing and Intellectual Property Rights’ (2004) 7:5 Journal of World Intellectual Property 597.

[46] Preamble to TRIPs Agreement, above n 44.

[47] Veena Jha and Rene Vossenaar, above n 1, 15. For an illustration of implications of the TRIPs Agreement for Indigenous knowledge and biodiversity, see SK Verma, ‘TRIPs and Plant Variety Protection in Developing Countries’

(1995) 17:6 European Intellectual Property Review 281; MR Islam, ‘The Generic Drug Deal of the WTO from Doha to Cancún — A Peripheral Response to a Perennial Conundrum’ (2004) 7:5 Journal of World Intellectual Property 675; T Cottier, ‘The Protection of Genetic Resources and Traditional Knowledge: Towards More Specific Rights and Obligations in World Trade Law’ (1998) Journal of International Economic Law 555; Crucible Group, People, Plants and Patents (1994). For an Australian perspective on the issue of Indigenous populations and bioprospecting see generally M Blakeney, ‘Bioprospecting and the Protection of Traditional Medical Knowledge of Indigenous Peoples: An Australian Perspective’ (1997) 6 European Intellectual Property Review 298.

[48] WWF, The UN Biodiversity Convention and the WTO TRIPS Agreement World Wide Fund For Nature (WWF) Discussion Paper June 1995 <http://www.panda.org/downloads/policy/publicationlistmar04.pdf> at 8 April 2005, cited in Veena Jha and Rene Vossenaar, above n 47.

[49] A comprehensive account of the effects of the TRIPs regime on biodiversity is beyond the scope of this paper. For details on the conflict between the CBD and the TRIPs Agreement, see K Stegemann and B Pazderka, ‘The TRIPs Agreement as an Alliance for Knowledge Production’ (2003) 6:4 Journal of World Intellectual Property 529; Gaia Foundation and Genetic Resources Action International, ‘Global Trade and Biodiversity in Conflict’ (1999) 19 Synthesis /Regeneration Spring 1999 <http://www.greens.org/s-r/19/19-10.html> at 26 November 2004.

[50] David Vivas and Elizabeth Turek, ‘Preliminary Comments on the Revised Documents for the Doha Ministerial Conference’ (November 2001). Cited in Howard Mann and Stephen Porter, above n 42.

[51] Fatoumata Jawara and Aileen Kwa, Behind the Scenes at the WTO: the Real World of International Trade Negotiations (2003) 124.

[52] Pradeep S Mehta, ‘The Doha Development Agenda: The Road Ahead’ (2003)

Canadian Development Report 2003 15.

[53] [ Martin Khor, The WTO, The Post-Doha Agenda and the Future of the Trade System: A Development Perspective (May 2002) Third World Network <http://www.twnside.org.sg/title/mkadb.htm> at 8 April 2005.

[54] Howard Mann and Stephen Porter, above n 42, 18.

[55] Fatoumata Jawara and Aileen Kwa, above n 51, 127.

[56] European Communities — Measures Concerning Meat and Meat Products (Hormones) WTO Doc WT/DS26/ARB 12 July 1999 (Decision of the Arbitrators).

[57] Kamal Malhotra, ‘Doha: Is It Really a Development Round?’ (2002) 1 Trade, Equity, and Development 4. For more on its Trade, Equity and Development global policy program see Carnegie Endowment for International Peace <http://www.CarnegieEndowment.org/> at 8 April 2005.

[58] Patrick Messerlin and Ernesto Zedillo (coordinators), Millennium Project Interim Report of Task Force 9 on Open, Rule-Based Trading Systems (20 April 2004) commissioned by the UN Secretary-General, 11 <http://www.unmillenniumproject.org/documents/tf9interim.pdf> at 18 April 2005.

[59] Kamal Malhotra, above n 57, 7.

[60] Tetteh Hormeku (Third World Network), ‘Cancún: Fundamental Differences over the Content of Draft Ministerial Declaration’ Third World Institute’s Choike.org website <http://www.choike.org/nuevo_eng/informes/1319.html> at 8 April 2005.

[61] Simon J Evenett, ‘The Failure of the WTO Ministerial Meeting in Cancún: Implications for Future Research’ (2003) 3 CESifo Forum 11–17. The four ‘Singapore issues’, so called because they were raised for the first time at the Singapore Ministerial in 1996 by the developed economies, are: the relationship between trade and investment policy; the interaction between trade and competition policies; transparency in government procurement practices; and trade facilitation practices.

[62] Dilip K Das, ‘The Doha Round of Multilateral Trade Negotiations: Causal Factors Behind the Failure in Cancún’, Research Paper, Center for International Development <http://www.cid.harvard.edu/cidtrade/site/new.html> at 8 April 2005.

[63] Murray Gibbs, ‘The Positive Agenda and the Seattle Conference’ in A Positive Agenda for Developing Countries: Issues for Future Trade Negotiations (2000) UNCTAD/ITCD/TSB/10 7 [citation omitted]; on UNCTAD website <http://www.unctad.org/en/docs/itcdtsb10_en.pdf> at 8 April 2005.

[64] Fatoumata Jawara and Aileen Kwa, above n 51, 305–6.

[65] Indian Ambassador KM Chandrasekhar expressed this view in a press briefing criticising the Cancún draft Declaration. For details see Cancun Draft is Imbalanced, Say Developing Countries Report of WTO Heads of Delegation Meeting on Revised Cancún Text, 27 August 2003, Third World Network <http://www.twnside.org.sg/title/twninfo69.htm> at 8 April 2005.

[66] Fatoumata Jawara and Aileen Kwa, above n 50, at 306.

[67] Birdlife International, Trade and Environment: Sustainable Development (& Sustainability Impact Assessments) Position Paper July 2003 Royal Society for the Protection of Birds <http://www.rspb.org.uk/Images/SDSIA%20_19%20Aug%202003_%20-

%20Cancun%20Position%20Paper_tcm5-45154.pdf> at 8 April 2005.

[68] Kofi Annan, ‘Laying the Foundations of a Fair and Free World Trade System’ in Gary P Sampson (ed), The Role of the World Trade Organization in Global Governance (2001). See United Nations University News Release (n.d.)

<http://www.collinsassoc.ca/pr/main_unuwto.htm> and book description on Vedams Books website <https://www.vedamsbooks.com/no25815.htm> both at 11 April 2005.



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