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.

GAL and the Betancourt rescue: misuse of the ICRC emblem

No one can have missed the story of the dramatic rescue of the French-Columbian politician Ingrid Betancourt after six years of being held in captivity by the FARC in Columbia a few weeks back. In the last day or so, however, a new element of the "audacious" rescue has emerged, which perhaps raises some issues of GAL significance. I am speaking, of course, of the revelation of - and apology for- the fact that one of the rescuers wore the emblem of the International Committee of the Red Cross (ICRC) on his uniform as part - officially condoned or otherwise - of the efforts to deceive the rebel group into freeing the hostages, before themselves being captured.

It has been clear since news of the rescue broke that members of the Columbian military forces posed as humanitarian NGOs as part of the deception:

Plans for the mission stretch back to May 2007 when police officer John Pinchao emerged from the jungle, weak and disorientated, 17 days after escaping his Farc captors. He brought with him crucial details of a hostage camp, giving Colombia's military intelligence enough to plant a mole in Farc's top ranks. The plans were further shaped when Farc released six hostages in January, handing them over to the Venezuelan President Hugo Chavez.

The aim was to persuade the Farc leader holding Betancourt - Gerardo Aguilar Ramirez, known as César - that the hostages he held were to be moved to another hostage camp by helicopter, with the help of an international humanitarian NGO, so that negotiations could begin for their release.

The Colombians decided to pose as an NGO similar to the one used in the Chavez handovers.

That this might cause problems for future, genuine aid workers in carrying out their duties seems to have been largely overlooked until the emergence today of the fact that one rescuer displayed the emblem of the ICRC, a body with a special status in terms of international humanitarian law through the key role afforded to it in the Geneva Conventions. In order, inter alia, to protect the Organization and its neutrality (key to its ability to carry out its humanitarian functions in conflict situations), the use of the emblem for anything other than medical purposes is generally prohibited. In general terms, Article 37 of the 1st Additional Protocol to the Geneva Conventions prohibits "perfidy" in the following manner:

1. It is prohibited to kill, injure or capture an adversary by resort to perfidy. Acts inviting the confidence of an adversary to lead him to believe that he is entitled to, or is obliged to accord, protection under the rules of international law applicable in armed conflict, with intent to betray that confidence, shall constitute perfidy.

The following acts are examples of perfidy:

(a) the feigning of an intent to negotiate under a flag of truce or of a surrender;
(b) the feigning of an incapacitation by wounds or sickness;
(c) the feigning of civilian, non-combatant status; and
(d) the feigning of protected status by the use of signs, emblems or uniforms of the United Nations or of neutral or other States not Parties to the conflict. (Emphasis added).

It remains, of course, an open question as to whether Additional Protocol 1 applies to the conflict between the Columbian Government and the FARC, although the ICRC has suggested that its provisions now form part of customary international humanitarian law. For much more detail on the international legal ins and outs of this issue, see this excellent post by Duncan Hollis over at Opinio Juris.

According to the ICRC website (see here), the Geneva Conventions contain a number of other rules on the use of the red cross emblem in particular, to the extent that they can only be used by the following actors:

• armed forces medical services (and only when carrying out medical duties);
• National Red Cross and Red Crescent Societies duly recognized and authorized by their governments to lend assistance to the medical services of armed forces;
• civilian hospitals and other medical facilities recognized as such by the government and authorized to display the emblem for protective purposes;
• other voluntary relief agencies subject to the same conditions as National Societies: they must have government recognition and authorization, and may use the emblem only for personnel and equipment allocated exclusively to medical services.

The Conventions also contain obligations on states to prevent and to punish misuse of the emblem. The admission and apology by the Columbian Government of the use of the emblem by one of its actors seems to imply recognition of wrongdoing on its part; whether or not its subsequent action can be viewed as discharging all of its international obligations remains, for the moment at least, very much an open question.

There can be little doubt that - despite its odd formal status - the ICRC is performing a public governance function in carrying out its humanitarian tasks. It is, indeed, one of the most interesting of global administrative bodies, both in terms of its legal structure and status, and through its extensive and important field operations. The sanctity of its symbols is also an unusual - if entirely understandable - feature. Whether or not we think that the official explanation from the Columbian Government - that "one member of the team had worn the emblem 'contradicting official orders' because he was nervous about the operation", but whose name would not be disclosed "because we do not want to affect his career" - rings entirely true, there can be no doubt that this incident raises interesting issues at the GAL/intellectual property/international humanitarian law nexus.

Voting today on the new DG of the WIPO

Following up on an earlier post on the process of electing the new Director General of the World Intellectual Property Organization (and their plans to increase accountability and transparency within the Organization), a quick post to note that the vote takes place today, when the field has been "dramatically" narrowed down to three candidates, from Australia, Brazil and Pakistan.

Indeed, you can follow all the action live here, on the excellent Intellectual Property Watch website.

GAL doesn't get much more exciting than this...

**UPDATE**

Australian candidate Francis Gurry has been elected as the new Director General of the WIPO. You can find his presentation here; and his responses to questions put by the IP Watch website, including his intentions for changing the internal management, staffing and procedures of the Organization, here.

WIPO DG candidates on increasing accountability

The Intellectual Property Watch site has an interesting article, with a number of useful links for further information, on the recent interaction between the candidates for the position of Director General of WIPO and various concerned civil society representatives, "to discuss how WIPO’s strategies for the future might involve both more transparency and better accountability to stakeholders in environmental, social, and economic issues". Well worth a look; besides the classic accountability/transparency issues, the section on "WIPO in the developing world" is also of interest from a GAL perspective.

Need for WIPO reform?

The website Intellectual Property Watch has a couple of interesting news items recently dealing with the travails of the World Intellectual Property Organization, and in particular its efforts to get a budget approved (through lack of full funding) and to appoint a new Director General, with the suggestion that these and other difficulties are causing industry figures to lose trust in the Organization (despite the fact that a budget has now been approved).

Interestingly, one the key areas for reform suggested by commentators refers to the internal transparency and management procedures of the Organization - very much the domain of GAL (and, indeed, of the more limited, traditional sphere of international administrative law). IP Watch has gone so far as to ask the 15 prospective candidates for the post of Director General a set of 5 questions relating to how they see the role and future development of the Organization, one of which is "One year after you take office, what do you expect to have changed in WIPO’s management, staffing and procedures?". The answers, which can be found here, provide some interesting insights into current thinking on the internal administrative law and procedures of international organisations, even if they do not often get past the basic, abstract incantations of transparency, accountability and "good governance" more generally.