Friday, January 23, 2009

Developing countries and the World Customs Organization: demand for GAL grows

From the always excellent Intellectual Property Watch site, we get this interesting little vignette: the World Customs Organization has disbanded its working group on intellectual property enforcement standards after a number of developing country members complained that "the group’s work on standard-setting might be used as a means of enlarging the obligations imposed on countries by the WTO TRIPS Agreement" (according to the WCO Policy Commission). Brazil and Argentina, for example, had circulated in October 2008 a document entitled "Ensuring transparency and a legitimate, member-driven process in the SECURE Working Group" (available here, p. 14), which included a complaint that documents were developed without sufficient public participation. These concerns have clearly been brought to a head with the discontinuation of the working group.

A new body has been proposed that will focus more heavily on technology transfer and capacity building. IP Watch also reports, however, that this new body is causing concerns among the same members, primarily because, even if the substance of the agenda looks more developing-country friendly, the same issues relating to procedure - in particular transparency, voice and accountability - have not been addressed.

This illustrates two points nicely: firstly, that developing countries are very much alive to the "administrative" nature of standard-setting bodies, and to the fact that their activities can have real normative implications in terms of international obligations; and secondly, that they are increasingly turning to GAL-type demands as a means of ensuring that their voices are, and will continue to be, heard.

2 comments:

Amaury Reyes said...

"This illustrates two points nicely: firstly, that developing countries are very much alive to the "administrative" nature of standard-setting bodies, and to the fact that their activities can have real normative implications in terms of international obligations; and secondly, that they are increasingly turning to GAL-type demands as a means of ensuring that their voices are, and will continue to be, heard"

The public participation issue in this case is very important and in my view, a good example of how the domestic administrative law provides conceptual elementos to GAL.

In my view, this is avery interesting topic, specially regarding the public participation in administrative procedures, which is a key element of the roman-germanic administratives proceedures. Indeed, the Public Participation is an element so important, and bounded to the right to be heard (Cfr.Kadi Case or mutantis mutandis Netherlands v. Commision. 6/11/08, regarding the guarantees of a due administratives process) that is the result, inter alia, the solidification of the principle of legality, that i taken into accountfor the purposes to secure the due protection to the administered under any given administration policy.

The Philosophy of the Public Participation or the right to participate in administrative proceedings involves, inter alia, the participation of the administered in those policies of public decisions to be rendered or issued that might affect their interests and this element of public participation it does not limit itself to the begining of the administrative proceedings, it goest also to every until (but no excluding)the final decision or document as a result of the proceedings.

"the group’s work on standard-setting might be used as a means of enlarging the obligations imposed on countries by the WTO TRIPS Agreement" from this paragraph we can see why how Brazil, argentina and others had cirulated a paper which inclided a complait, as you well said it. The afore transcripted paragraph expresses a real concern regarding the enlarging the obligations imposed on countries by the TRIPS, and that enlargign of obligations could take place on an erga omnes administrative act and as a participants or entites whom interest will get affected by that "elbarging obligations act" they perfectly could access to a competent body to impugn it. All this because the was not sufficient public participation.

These lines might be a broad view of the public participation but believe it sets a good example on how the acts of some administratives bobies have a impact on international obligations and how that could affect the interests of the administered or subjects (like argentina and brazil) until the point that open a procedural way to defend their interests.

Euan MacDonald said...

Thanks for the comment, Amaury; I think your right that the public participation issue is the most striking aspect here, as one might have expected it to be limited to ensuring a stronger voice for developing country governments in the standardisation process.

I went back and had a closer look at the text of the complaint. There are really two quite distinct participation claims: the first is the more expected one, under the title of "member driven preparation of documents" (paras. 2-4), which speaks to the need to ensure that all members are involved in the administrative activity.

The second, more striking issue is that of participation for private actors (or "public participation"), which gets even more attention than the first (paras. 5-8) under the heading of "ensuring transparency", and clearly draws on an "interest-representation" model of domestic administrative law:

"a variety of stakeholders might be affected by the work under way within the SECURE Working Group. Consequently, they may have a vested and legitimate interest in following the developments within this forum. There is no apparent reason why the work of SECURE should benefit only from inputs originating from representatives of a part of the private sector. Thus, public health, consumer and other public interest groups should be given the opportunity to follow the work of SECURE."

With a concommitant access to information provision:

"Although the contention above is reasonable, participation by interested groups is made difficult by the fact that the relevant documents are not publicly accessible in the WCO website...

The Working Group should discuss ways and means to make available the documents that concern SECURE, without prejudice to selecting certain parts of these documents for access exclusively to a defined group of members. Making documents available would not only enhance the transparency and legitimacy of the discussions on SECURE, but would also put the WCO in line with the practice of the majority of international organizations."

It is difficult indeed not to read this, and in particular the last sentence about the general practice of IOs, as bearing witness to the emergence of GAL...