1. Background, Objectives and Participants
2. Introduction to the WTO
3. Introduction to the International Human Rights Regime and WTO Dispute Settlement
4. Labour Standards and the WTO
5. How to Interact with the WTO: Lessons Learnt from the Environment and Sustainable Development Movement
6. Intellectual Property Protection and the Right to Health
7. The Agreement on Agriculture and the Right to Food
8. Conclusion and Evaluation
9. Speakers, Facilitators and Participants

The Study Session was organised in the context of increasing expressions of concern by members of the human rights community that trade and trade rules are not sufficiently taking human rights into account, and may even be undermining governments' ability to fulfil their human rights obligations. Many of the suggestions emanating from the human rights community as to how trade and trade policy can proceed in a way that does not undermine human rights have not been heard, partly due to misunderstandings on the part of the human rights community as to the scope of the WTO's rules, the way the WTO works and the role of its dispute settlement mechanism.

The Study Session thus aimed to provide professionals active in the human rights system with a detailed overview of the World Trade Organisation (WTO)'s rules and processes, in order to help them identify and acquire the knowledge tools necessary to engage with the trade community in an informed and effective way. It also sought to bring together actors from the trade, human rights, and sustainable development communities in order to share experiences and build a common understanding of issues of mutual concern.

Approximately 25 professionals participated in the Study Session, including representatives of leading human rights organisations, development organisations, governments, academic institutions, and the Office of the High Commissioner for Human Rights, as well as independent experts of the UN Human Rights system. The list of participants, speakers and facilitators is on the last page of this report.

The aim of this session was to give participants an overview of the main legal and political characteristics of the WTO, including the principles on which its work is based, the rules contained in the WTO Agreements, and the main economic and political factors which shape the WTO's activities and discussions today.

The speaker set out the history of the WTO, describing how its creation in 1995 evolved from the adoption of its predecessor, the General Agreement on Tariffs and Trade (GATT) in 1947. He presented the agreements which constitute the three main "pillars" of the WTO: trade in goods, trade in services and intellectual property, as well as the Dispute Settlement System – the "roof" of these three pillars – which applies to all the WTO's agreements. He also described different countries' current positions regarding the possibility of a new round of multilateral trade talks that could be launched at the WTO Ministerial Conference at Doha in November 2001.

The speaker explained the central principle of the WTO, which is non-discrimination between "like products" from different countries, saying that in the context of international trade, the principle of non-discrimination is operationalised through the "most-favoured nation" and the "national treatment" principles. He explained in some detail the importance of the definition of "like product," saying that there is no agreed definition, and that the question ran through all the policy discussions in the WTO. He pointed out that so far, GATT and WTO tended not to allow distinctions to be made between products that have similar end-uses and characteristics on the basis of the way in which they are produced (process and production methods – PPMs), although there are now indications that there might be a move towards allowing some distinction between "like products" on the basis of their PPMs. Participants expressed particular interest in this point, asking, for instance if the GATT exception which allows measures relating to prison labour could be considered a PPM, and whether two products would be considered "like" if one was produced by child labour. The speaker pointed out that if WTO Members could distinguish between products based on their PPMs, i.e., how the product was produced, then trade would only take place between countries with comparable regulatory regimes, thus denying Members their right to market access, which is what GATT and then the WTO were set up to guarantee.

At several points during the introductory presentation the speaker pointed to disadvantages faced by developing countries in the international trade system. In particular, he referred to the fact that agriculture and textiles – two areas in which developing countries enjoy comparative advantage – were excluded from the GATT regime and are still not fully integrated into the WTO regime. This enables industrialised countries to maintain trade barriers in these areas, thus depriving developing countries of opportunities for revenues from their textile and agricultural sectors, in which they enjoy comparative advantage. The speaker also mentioned that we are witnessing a move away from an international most-favoured nation (MFN)-based trade regime, as the number and strength of bilateral or regional trade agreements increase. He pointed out that it is the weaker trading partners who suffer when there is a move away from MFN, as they have less weight in bilateral or regional trade negotiations.

In addition to describing the basic features of the General Agreement on Trade in Services (GATS) and some of the main issues in the current services negotiations, the speaker pointed out that the negotiating climate in this area differs from that in negotiations on trade in goods due in part to the fact that many of the delegates negotiating services are new to multilateral trade negotiations and unfamiliar with the possibilities for trade-offs. The main issue of concern to Study Session participants regarding GATS was whether and how GATS can limit a government's ability to provide basic services such as health and education. Participants were concerned that liberalisation in the services sector could have a negative impact on such basic services, but the presenter responded that not all service sectors are covered by GATS and thus not all sectors have to be opened to competition. He added that in any event, competition can be positive even in some basic services sectors.

The speaker described how the WTO's Dispute Settlement Mechanism (DSM) works, ecalling that its strong DSM is what distinguishes the WTO from other international organisations. He pointed out that the Appellate Body and panels will exercise "judicial restraint" – in other words, they will rule on the point raised by the case in order to settle the dispute but will not go further than this or address any other issues. The reason for this is that decisions of the DSM cannot add to or diminish Members' obligations under the WTO Agreements. The issue of judicial restraint v. judicial activism by WTO panels and the Appellate Body was discussed at some length, it being pointed out for instance, that panels and the Appellate Body risk being accused of judicial activism when issuing rulings on parts of the WTO Agreement that were left intentionally ambiguous when they were negotiated. The speaker pointed out that losing parties in WTO disputes often claim that the Appellate Body is adding to Members' obligations.

Points of particular interest to participants concerning the WTO's DSM included the quality and impartiality of panelists and Appellate Body members, participation in the dispute settlement system, and the rights of non-governmental organisations (amicus briefs). The speaker said that on the whole, Appellate Body reports are considered to be of good quality. He described how panellists and Appellate Body members are selected and appointed and some of the proposals currently being made for improving the system, such as the European Union's proposal for having a professional body of panelists. Responding to a participant's question as to whether the Appellate Body was controlled by the WTO General Council, he said that most WTO Members see the seven-member Appellate Body as prima donnas, not as pawns. The speaker described recent developments in the WTO on the question of whether WTO dispute panels and the Appellate Body could receive submissions (amicus briefs) from non-governmental organisations, leaving open the conclusion that this issue is not settled.

Several participants questioned whether developing countries have effective access to the DSM. All WTO Members have equal rights but not all can assert their rights when they are violated, because bringing a dispute to the WTO is expensive and not all countries have the resources to do so. It was pointed out that in cases brought by the EU and the US, lawyers are often paid for by industry. The speaker described the Advisory Centre for WTO Law which was set up in Geneva in July 2001 to give advice to the member countries of the Centre and to Least Developed Countries (LDCs), and to provide training in WTO law. Whilst participants agreed that "legal aid" is a good thing, one pointed out that developing countries are often in a difficult situation because the rules are not in their favour, and given their weaker negotiating capacity, they may tend to continue to be parties to rules that are not to their advantage.

The objective of this session was to set out the main features of the international human rights regime relevant to discussions about trade and human rights, such as mechanisms for implementation of economic, social and cultural rights, the obligations under human rights instruments to cooperate internationally and the role of non-State actors, as well as how to resolve potential conflicts between international human rights law and WTO law. Given participants' strong human rights background, and their interest in the WTO legal regime, the discussion focussed almost exclusively on the WTO dispute settlement mechanism, how it might deal with human rights issues, and what the role for human rights professionals might be in this context.

The first speaker began by looking at the legal relationship between trade and human rights law. He asked whether there was any legal obligation on WTO Members to help developing countries, or to promote economic, social and cultural rights. He pointed to the WTO's preamble which includes as objectives "raising standards of living" and "ensuring full employment." He quoted Articles 55 and 56 of the UN Charter, which say that UN Members shall cooperate in the UN's promotion of inter alia higher standards of living, full employment, solutions for international economic, social, health and related problems and universal respect for human rights. He also referred to provisions of the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the Convention on the Rights of the Child (CRC) which set out the obligation on parties to cooperate to realise the rights set out in these treaties.

The speaker pointed to different ways in which one might approach a conflict between WTO law and activities and human rights law. One was to turn to Article 103 of the UN Charter, which gives the UN Charter priority over any other conflicting international obligation. However he pointed out that trade law may be considered a lex specialis and thus escape the Article 103 presumption. Another approach might be to qualify human rights as erga omnes, peremptory norms which would trump WTO law, but he also discarded this argument as weak because there is little consensus as to the content of such erga omnes norms. In the speaker's view, the best approach is that of Article 41 of the CRC, according to which nothing in the CRC shall affect any national or international provisions which are more conducive to the realization of the rights of the child. He asked participants to think about how human rights procedures and how WTO procedures could be used to resolve conflicts between the two fields of law.

The second speaker examined different legal scenarios that could arise if a conflict arose concerning incompatibility between WTO law and human rights law, and how such conflict would be resolved in the WTO dispute settlement mechanism (DSM). She recalled that unlike the International Court of Justice, which has jurisdiction over all international law, WTO panels and the Appellate Body only have jurisdiction over the WTO Agreements. She stressed that Article 23 of the WTO Dispute Settlement Understanding (DSU) is of crucial importance for a dispute that involves WTO law and human rights law in that it specifies that if a dispute involves an allegation of a violation of WTO law, recourse to the WTO DSM is compulsory and exclusive. She suggested that DSU Article 23 is the provision human rights professionals should be concerned with, given that it excludes possibility of recourse to any other jurisdiction when WTO rules are at stake, even if other rules such as human rights are also affected.

The speaker set out three hypothetical scenarios: where a WTO Member complies with WTO law but in so doing violates human rights law; where a Member violates WTO law in trying to comply with human rights obligations; and where a Member violates WTO law causing a negative impact on human rights. She pointed out that actual cases of conflict should be rare since WTO rules tend to set out prohibitions, or obligations to achieve certain policy results without specifying how these should be implemented. Thus Members should be able to implement their WTO obligations in a way that does not entail violating their human rights obligations. She also recalled the presumption of good faith in international law: States are obliged to negotiate in good faith, meaning for instance that in trade negotiations, States must keep their human rights obligations in mind.

In the first scenario the speaker mentioned, no case could be brought to the WTO's DSM since there is no violation of WTO law. Regarding the second scenario, the speaker recalled that panels and the Appellate Body have the obligation to interpret WTO provisions by taking into account all relevant rules of international law. She pointed to examples of this, for instance in the Shrimp-Turtle case¹, the Appellate Body used the provisions of other international environmental treaties to interpret WTO provisions. She nevertheless stressed that in so doing, a panel or the Appellate Body is not empowered to add to or diminish Members' rights and obligations under the WTO Agreements. There was discussion between participants and the speaker as to whether GATT's exception clause (Article XX) could be invoked in this scenario. If the case involved a human rights principle considered by the panel or the Appellate Body to supersede the WTO rule at issue, the panel or Appellate Body may decide that they have no jurisdiction since there is no WTO law applicable between the parties.

The speaker pointed out that the only remedy the WTO DSM can award is to tell the Member found to be in violation that it should bring its law or measures into conformity with its obligations under the WTO (without specifying how this should be done). Thus, taking the example of the third scenario she identified, a panel or the Appellate Body cannot tell a party to a WTO dispute that it must bring its laws or practices into conformity with human rights law.

There was discussion about the conditions under which Members may derogate from WTO rules. Participants also dwelt on the legal meaning and practical implications of the GATT's requirement that the "least trade-restrictive" trade measure be used when derogating from its rules. In response to points that arose in the discussion the speaker mentioned that some academics have argued that the WTO is moving closer towards distinguishing between products on the basis of how they are produced (their PPMs). She pointed out that another relevant factor is that panels and Appellate Bodies will take an evolutionary approach to legal interpretation, as evidenced by the Shrimp-Turtle case.

There was discussion about whether international law allowed the WTO to claim exclusive jurisdiction over WTO-related cases, whether the WTO is bound by general international law, about the difficulties relating to fragmentation of international law, and about the lack of role for non-State actors in international dispute settlement. The speaker expressed her view that the WTO as an institution is bound by international law in so far as its functional international personality permits it to be bound, but said that the issue has never arisen. She also mentioned that the WTO Secretariat does not have the authority to issue interpretative statements. On the question of whether panels and the Appellate Body can refer to information from non-governmental sources, she pointed out that although the situation in this regard is at present unclear, non-governmental information (amicus briefs) are still referred to in several WTO disputes; often such non-governmental information comes from industry groups rather than public-interest ones.

Participants and the speaker also discussed the links between politics and the WTO dispute settlement process. One participant expressed the view that panels and the Appellate Body were influenced by political considerations. Several said that academics may have an important role to play in providing the Appellate Body with information on legal standards that exist in other fields of law such as human rights, labour or health. Another pointed out how legal rights could be traded off for economic benefits, citing the example of how several developing countries waived their flexibility rights under the TRIPs Agreement in exchange for economic concessions by industrialised countries. The difference between morals and law was pointed out with one speaker saying that agricultural subsidies are not illegal in the WTO, but should be unacceptable when children are starving in other countries. She pointed out that the best way to address these kinds of issues may be to raise them directly with governments, or through human rights mechanisms.

¹United States - Import Prohibition of Certain Shrimp and Shrimp Products, Report of the Appellate Body, WT/DS58/, on the web via www.wto.org/english/tratop_e/dispu_e/distab_e.htm

The first speaker charted references to core labour standards (CLS) in the development of the GATT and WTO. He said that the US has consistently pushed for labour standards in the WTO since the First Ministerial Conference, in Singapore in 1996. Developing countries have equally consistently opposed this, as they fear that labour standards would be used to disguise measures to protect the domestic industry from competition. Developing countries argue that the WTO is a commercial contract based on rules governing trade, and that domestic policy on non-trade issues has no place in it. They are committed to CLS but say that work on this should take place in the International Labour Organization (ILO). The speaker observed that the ILO does not have observer status in the WTO General Council. He criticised the US position on labour standards in the WTO for not proposing that industrialised countries take on reciprocal obligations in areas of concern to developing countries such as movement of natural persons, in order to alleviate developing countries' fear that the US is not seeking to use CLS to mask protectionist intentions. The speaker pointed out that the labour standards debate is deadlocked in the WTO but that momentum is building for a World Commission on the Social Dimensions of Globalisation, to be established in the ILO, which might be launched at the Doha Ministerial Meeting in November 2001, and in which the WTO and other international organisations would participate.

The second speaker observed that after the WTO's Singapore Ministerial the ILO did play a somewhat stronger role. Its members adopted the Declaration on Fundamental Principles and Rights at Work in 1998, but did not follow this through with changes to domestic legislation. This inertia heightened concerns within the Trade Union and non-governmental communities that nothing was being done to protect the rights articulated in the Declaration from negative impacts of trade liberalisation. Both speakers expressed concern about how trade liberalisation is leading to a growing number of Export Processing Zones (EPZs), where labour standards are often low. The number of EPZs is likely to increase further when China joins the WTO.

Part of the discussion focussed on whether trade liberalisation results in raising or lowering labour standards, explicitly highlighting the fact that the differences between lawyers and economists in terms of the approach, analysis and language they use can affect the outcomes they seek. A participant said that the International Financial Institutions (IFIs) say that they are only concerned with economics, thus forcing critics into an economics-based debate, when in fact IFIs are also bound by international law, so should take considerations other than economics into account. A participant expressed the view that one should not assume, without evidence, that introducing labour standards into the WTO would be a good thing. Another participant said that protecting human rights and labour standards can increase economic efficiency. It was recalled that since CLS are human rights standards, one does not need empirical proof of economic considerations before taking steps to ensure that they are respected. One of the speakers referred to an OECD study that showed that in the labour standards debate, political will is more important than economic ability. He recalled that there are many ways to reduce production costs apart from reducing labour costs, so labour standards should not automatically suffer when there is increased economic competition.

A participant asked why developing countries had not got together to propose their own labour standards. One of the speakers said this was relevant today as South-South competition is likely to become more fierce with China's entry into the WTO, and countries like India, Pakistan and Malaysia may become more concerned with ensuring respect for CLS. Speakers and participants tended to agree that labour standards are closely linked to development, and are possibly more of a development than a trade issue. For instance, if children are taken out of factories but there are no accompanying measures for their families to earn the revenue the child had been bringing in, the children might end up in even worse employment, such as prostitution. The second speaker described the evolution of the Trade Union movement, which is now increasingly working on development issues, as it sees economic development as leading to improved conditions for workers. He pointed out that trade unions in Africa now spend more on work related to HIV/AIDS than on freedom of association. He drew attention to the fact that the language used today incorporates labour standards in the trade debate as one of the "social dimensions of globalisation," reflecting the broader approach to labour-related issues in the trade debate.

He said that the Trade Union movement is calling for a World Commission to be established in which coherence between different international organisations' mandates on labour issue is a central aim. He pointed out that conflicts between different ministries (health, education, trade, finance) are common at the national level, and the World Commission should seek to establish an overarching process to resolve conflicts that arise at the international level, to bring coherence into different bodies' work on labour issues. There was some discussion as to the best strategy to bring the IFIs, the WTO and the ILO into this kind of Commission, including thoughts and suggestions as to how to get trade unions and human rights groups to engage with it and with one another. Several participants commented on the reasons why so few human rights organisations work on labour issues, and why trade unions were not keen to see human rights people in the ILO.

The second speaker pointed out that the International Confederation of Free Trade Unions (ICFTU) prepares a brief on respect for CLS in each country that reports to the WTO’s Trade Policy Review Mechanism (TPRM). ICFTU circulates these briefs to WTO Members and encourages them to raise labour issues in their review of a country's trade policy. The Trade Unions would like the WTO and the ILO to agree that this is a sensible approach but they have not done so. Although some participants saw this process as holding great scope as a way of raising social issues in the WTO context, the speaker said that the process has not yielded much result, except in rare cases when the media picked up on the ICFTU brief. Nevertheless, participants agreed that there was scope for information collected for the Committee on Economic, Social and Cultural Rights to be used in the same way, and for the ICFTU country reports to be provided to UN Human Rights Treaty Bodies, and agreed to exchange this information.

The main issues covered in this session were how environmental issues have arisen in the WTO, what the relevance of the WTO as an institution is today given the trend towards bilateral and regional trade agreements, and how and where non-governmental organisations (NGOs) can act to influence trade policy.

The speaker described how environmental issues came to occupy an important place on the multilateral trade agenda, and how these have served as a "can opener" to bring other public policy issues into the international trade debate. This is partly due to the fact that emergence of environmental concerns in the early 1990s, during the end of the Uruguay Round negotiations that resulted in the WTO's creation, led to inclusion of language on "sustainable development" in the WTO Agreements. This recognition of the concept of sustainable development in the WTO makes it possible to introduce social issues and expose the WTO system as giving too much weight to favouring commercial interests.

The North-South divide remains patent in WTO discussions on trade and environment. To some extent environmental issues are seen as having been imposed on the South by the North, particularly by Northern NGOs. Many developing countries are wary of allowing a distinction in the WTO between products on environmental criteria such as the environmental effects of their production, as they fear that this will be a way for industrialised countries to limit access to their markets or to discriminate between "like products" of different origins. On the other hand, the speaker said, since European countries are pushing for the inclusion of environmental issues on the WTO's negotiation agenda, developing countries can use the environment as a bargaining chip.

The speaker pointed out that North-South tension stalled progress on environmental issues in the WTO's Committee on Trade and Environment (CTE), although the CTE has enabled a better technical understanding of the issues and some progress elsewhere in the WTO. Meanwhile, NGOs' positions have evolved somewhat from mirroring their governments position which was the case a few years ago. Many Southern NGOs, for instance, see the need for a southern NGO environmental agenda which might differ from their governments' agenda in the trade debate, and there is now more dialogue between Southern NGOs and their governments on these issues, as well as between Southern and Northern – particularly development – NGOs.

The speaker and Study Session participants engaged in a wide-ranging discussion on the WTO's role in promoting economic growth, protecting economically weaker countries, and serving the public interest. Participants disagreed strongly on whether trade liberalisation promotes economic growth, but one participant pointed out that regardless of whether trade liberalisation promotes growth, the question is: who benefits from trade? Another participant said that international trade would have increased whether the WTO existed or not, questioning the use of the WTO since in his view, it served corporate interests, resulted in lowering health, safety and other standards, and industrialised countries were maintaining barriers to developing country exports anyway. Another participant commented that developing countries would be worse off without the WTO than with it. The speaker concurred, pointing out the important role the WTO's multilateral rules-based system had played in insulating smaller countries from power politics.

He agreed with several participants who pointed out that many bilateral and regional agreements (such as the American Growth and Opportunity Act) have "WTO-plus" obligations built into them – in other words, these agreements require developing countries to liberalise more and/or faster than the WTO requires them to. He said that whereas in the past many developing countries supported the WTO for its role in insulating them from power politics, today with the increase in bilateral pressures it no longer plays that role. In response to questions as to what options exist other than the WTO and how the WTO can serve developing countries' and public policy interests, the speaker said that there is no option but the WTO. The speaker agreed that the locus of trade policy decision-making has moved since the WTO was established in 1995, and that the power relations were now being played out elsewhere than in the WTO. In 1995, trade policy-making could be depicted as a triangle with the WTO and its dispute settlement mechanism at the top and a number of regional and bilateral trade agreements, as well as some sector-specific ones at the bottom. Today the locus of international trade policy-making looks more like a web, with Washington and Brussels at the centre and other governmental or regional trade policy formulation processes at the periphery.

He concluded that developing countries still need the WTO system, but that we have to work towards making it effective, for developing countries and for public policy concerns. In response to the issue of standards, the speaker said that many countries are of the view that higher standards would result in a loss of competitiveness, so we should promote a system that promotes high standards in areas such as health and environment, but that does so equitably, in a way that does not discriminate against developing countries. The speaker recalled that sustainable development is a diverse agenda, including economic growth, public policy, social issues and environmental protection.

The speaker said that NGOs working on human rights in the trade context should look at where trade policy decisions are made, and how the commercial interests are generated and then seek to counterbalance these interests. He stressed the importance of NGOs, States and other actors working together, saying that the sustainable development community's experience over the past seven years has shown that it is possible to change the terms of the debate by involving communities of actors around issues. He commented that working with the WTO is difficult now because of the current arrogance of the Secretariat, but said that it was likely to become easier in the coming months. In conclusion, he was optimistic as to the possibilities for raising human rights issues in the WTO.

The first speaker recalled that the constitution of the World Health Organisation (WHO) cites the right to health, and discussed how a human rights approach can be useful in international debates on health. She pointed out that human rights discourse is implied, even if not explicit, in much international health work, such as the campaign against landmines, as well as in much of the WHO's work. She pointed out that sectors of a country's population who lack access to health care tend to be the weakest sectors of the population, those discriminated against in other ways. Participants discussed the role and limitations of the human rights treaty bodies, including the usefulness of their "General Comments." Participants agreed that the treaty bodies' work tends to be strongest in areas on which NGOs bring specific issues, such as is the case with the Committee on Economic, Social and Cultural Rights' (CESCR) work on housing. Several participants found the CESCR's General Comments, and in particular that on the right to health, of practical value, saying for instance that since UN resolutions often get watered down and result in politically-motivated, weak texts, the General Comments are more rigorous and useful tools for lobbying governments or other international organisations. Others commented that the more detailed General Comments (such as the one on the right to health) were too technical to be of informative use.

The second speaker provided participants with a thorough examination of the Agreement on Trade-related Intellectual Property Rights (TRIPs Agreement), focussing on how developing countries can use the Agreement's flexibility to promote public health in the face of pressure of corporate interests to strengthen Intellectual Property (IP) protection. He referred to the HIV/AIDS pandemic to illustrate the adverse consequences a strong IP regime can have on realising the right to health, given that patent holders have sought to prevent production of cheaper, generic versions of their drugs to treat HIV/AIDS. He cautioned that the high profile of the question of access to HIV/AIDS drugs should not lead us to forget that access to medicines is also important for the treatment of other illnesses. He also pointed out that IP protection is not the whole cause of difficult access to medicines, but only part of the problem. Another ways of providing affordable medicines are efficient government procurement systems such as that of the Australian government who negotiates a good price with pharmaceutical companies. The speaker also referred to the importance of transparency in drug pricing, which could be achieved by having a central list indicating the different prices charged for the same drug in all countries. He noted the Brazilian resolution on listing drug prices had been defeated two years running at the WHO’s annual conference due, in his view, to commercial interests acting through government representatives.

The speaker recalled that prior to the TRIPs Agreement many countries did not have patent laws, also pointing out the high cost of setting up patent offices in developing countries which did not previously have such offices. He strongly criticised the World Intellectual Property Organisation (WIPO) draft model laws on TRIPs, saying that the model is not suited to most developing countries.

The speaker carried out a detailed and practical analysis of the TRIPs Agreement's Articles 7, 27, 30, 31, 40, 44 and 66, which are the main provisions that allow WTO Members flexibility to promote public interests over strong IP protection. He indicated what flexibility these Articles allow, how the flexibility might be applied, what difficulties in its application might be, and what strategies might be used to resolve these difficulties. With regard to Articles 30 and 31 which deal with compulsory licensing, i.e. allowing the use of a patent without the authorisation of the patent holder he looked inter alia at the provision which says a country may only issue a compulsory license after the proposed user has made efforts to obtain authorisation from the patent holder on "reasonable commercial terms" (Article 31(b)). He encouraged countries to negotiate with pharmaceutical companies to determine the "reasonable commercial terms," as he said this could trigger the pharmaceutical company to set up a manufacturing plant in the country themselves, or to voluntarily license another company to manufacture the drug, as it may be more advantageous for the pharmaceutical company to enter into a voluntary licensing agreement setting a relatively low royalties fee than have the government grant a compulsory licence. He also drew attention to the wording of Article 31(f), which limits compulsory licenses to those "… authorized predominantly for the supply of the domestic market of the Member authorizing such use," discriminates against small countries whose domestic markets are too small to support manufacture of pharmaceuticals. Larger countries like India or Brazil would have a large enough domestic market to be able produce a generic drug under compulsory license but might not then be able to export it. The fact that not all countries can have domestic pharmaceuticals production renders the smaller countries vulnerable to the high prices and availability of drugs on the international market.

The speaker pointed out that few countries have used compulsory licensing for production of pharmaceuticals, and he referred to a draft model law for using patents without the authorization of the patent holder that his organisation has developed.²

The speaker emphasised that the TRIPS Agreement allows a country to set up an administrative, rather than a judicial, process to examine allegations of anti-competitive practices, for example, under Article 31(k). The lower cost of an administrative compared to a judicial process could result in the grant of more licenses to manufacture drugs, and the increased competition might decrease prices thereby achieving the ultimate goal of increasing access to drugs for the poor. He regretted that this important possibility remained unused and that no government or international organisation has devised a model for an administrative process of this type. He also pointed to Article 66 under which countries can apply for an extension on the period of time during which they do not need to apply the TRIPS Agreement, asking why it had not been used. Overall, the speaker regretted that developing countries had not made better use of the TRIPs Agreement's flexibility provisions and said that his organisation is working to get States to draft national legislation which would be more in their interest than WIPO's model legislation and allow the flexibility necessary to support access to drugs for poor populations. In his view, there is at present a window of opportunity during which the US will accept compulsory licenses, and this political will should be seized before it is too late. The speaker and several participants also pointed to the fact that TRIPs rules allow more flexibility than many of bilateral or regional agreements, which require countries to provide stronger patent protection, or to protect it sooner, than TRIPs requires.

The discussion following the presentation focussed on how human rights law and mechanisms could support work towards ensuring application of the TRIPs Agreement's flexibility mechanisms. Sub-Commission members discussed with the speaker what could usefully be referred to in this regard in a Sub-Commission resolution, and an Office of the High Commissioner for Human Rights staff member said that issues could be flagged in the CESCR's draft General Comment on IP.

² Available on request from the Study Session Secretariat.

The main points covered in this session included developing countries' difficulties regarding the liberalisation of trade in agriculture, how to measure development and what the human rights dimensions of these issues are.

The first speaker described the main provisions of the Agreement on Agriculture (AoA, or Agreement), specifying that it regulated three main pillars: market access, domestic support and export subsidies. She pointed out that the AoA was basically agreed to between the US and the EU who submitted it to the rest of the WTO membership on a "take it or leave it" basis, and thus is more suited to industrialised countries' economic needs than to the needs of developing countries. She detailed several ways in which the implementation of the AoA has advantaged industrialised countries over developing countries, including the fact that the way that developing countries set their agricultural tariffs later precluded them from applying the "Special Safeguards Clause" which permits a country to temporarily close its markets to inflows of cheaper agricultural products, and the fact that OECD countries have increased their agricultural subsidies since the AoA was adopted. Moreover, when the AoA was adopted, the so-called "Marrakesh Decision" was also adopted according to which developed countries were to compensate LDCs and Net Food-Importing Developing Countries if they should they be negatively affected as a result of higher food prices or reduced availability of food aid as a result of implementation of the AoA. The speaker said that this Decision is a stark example of a broken promise as it has never been implemented.

The speaker mentioned that a review (assessment) of the AoA that should have been carried out in 1999 was never undertaken, and thus WTO Members are engaging in new negotiations without knowing the impacts of the AoA so far. She nevertheless said that the current WTO negotiations on agriculture, which were mandated by the Agreement itself, provided an opportunity to review and revise the Agreement to incorporate developing country and food security concerns. She outlined the positions of the main players in the ongoing agriculture negotiations. She said that the issue of food security has come up in the current negotiations, although Members have not gone into much depth on this yet. She also referred to the proposal from several NGOs to introduce a "development box" into the AoA, which would allow measures to enable developing countries to better address their food security concerns and to preserve and improve rural livelihoods, calling for changes to agriculture trade rules so that developing countries and especially poor communities within them can benefit fully from agricultural trade.³

The second speaker emphasised the particular difficulties that developing countries face with agriculture trade liberalisation. Whilst some developing countries which are highly competitive in view of their size, resources, etc. wish to see more rapid liberalisation, a number of developing countries had also emerged as net losers from the new international agriculture trade regime. She noted that the MFN regime, that is, the application of the same rules to all countries irrespective of size and specificities resulted in an unfair and inequitable situation since the diversity of situations prevailing and the incapacity of countries to compete as an equal footing was not taken into consideration. In this context, she drew attention to concrete examples of differences between bigger and smaller states although they were both often classified under the common appellation of developing countries. She noted the particular problems of single commodity producers, small island developing states and the net food importers.

She also noted that whilst LDC’s had been granted very liberal access to developed country markets, they were disadvantaged by supply side constraints and faced difficulties in meeting the stringent food safety norms applicable in most developed countries. Preference-receiving countries such as the ACP States, amongst which, the banana-producers, had seen their preferential access eroded through liberalisation without any compensatory measures or equivalent benefits forthcoming in the wake of such liberalisation. She said that dissatisfaction with the WTO on the part of some countries is so high that they might "leave" the system – may be not by formally walking out of the WTO but by simply not applying to its rules.

Participants discussed the practical meaning of "food security." It was recalled that the FAO's definition is that people have access to food that is culturally acceptable and safe. A speaker said that for the WTO, food security means having enough food in the international market, but that it does not look at how this food is distributed between and within countries. A vivid discussion took place amongst the speakers and participants on how to measure development, with most agreeing that trade liberalisation without fundamental human rights produces imbalances. Most of those who spoke doubted that GDP is the right measure, pointing out that even if a countries' income from exports rises, domestic disparities might increase, for instance if small farmers lose their livelihood due to liberalisation in agriculture. A participant asked whether per capita adequacy of food might be a useful yardstick, another participant responded that one needs a broader measurement, taking into account whether the rights to food, health and housing and realised. One of the speakers said that the UN and NGOs have developed indexes on human development, but there is no system in the WTO to look at this. She said that a "vulnerability index" which could inter alia measure a State's reliance on commodities, might be a helpful tool.

The second speaker said that the objectives set out in the WTO preamble, of raising standards of living and promoting sustainable development are not operationalised in the WTO's rules. She acknowledged that fulfilling social objectives depends on policy at the national level but pointed out that the WTO's rules can impinge the kind of action which a country can take without being in conflict with trade rules. She said that the WTO does not look at the distributional effects of trade at the national level, pointing out that this becomes a human rights issue when the trickle-down effect of loss of revenue due to trade liberalisation for vulnerable States such as those reliant on a single commodity, harms people for instance through negative impacts on workers' rights. She added that in the WTO human rights issues such tend to be looked at only in terms of economics, without any reflection being undertaken as to the actual effect of WTO rules on people, or on other issues such as human rights. The question of the effect of TRIPs on public health had sensitised people as to the relevance of WTO rules to their daily lives, but this awareness was not so visible in the area of agriculture. She also flagged the difficulty posed by the fact that no assessment of the AoA so far had been carried out, thus WTO Members are negotiating new rules on agriculture without knowing the impacts of the existing rules. This raises the question of how negotiators could know whether the direction in which these negotiations were going was the right one?

She described how her country had referred to the International Covenant on Economic, Social and Cultural Rights in its submission to the agriculture negotiations. She commented that other countries were cautious about this approach as they feared that this could open the door to labour standards and other human rights issues in the WTO. Both speakers mentioned how human rights standards have been seen as conditionality – European States have for instance offered preferential access to countries which have certain labour standards in place and the only country that has qualified so far has been Moldova, illustrating the difficulty for developing countries to implement higher labour standards or to demonstrate that they have them in place. The speakers and several participants concurred that there is need for information and awareness raising on how human rights standards can be in developing countries' interest.

³ For the full proposal, see www.cafod.org.uk/policy/devbox.htm

The Study Session allowed in depth discussion of a range of key issues on the WTO's agenda today, with a focus on how the human rights dimensions of these issues can be addressed by the human rights community in collaboration with concerned players in the trade community, as well as in collaboration with other groups such as trade unions and development organisations.

The evaluation forms handed in by participants at the end of the Study Session confirmed that the Session had met its objectives of improving knowledge amongst the human rights community of the WTO's rules and ways of working, and of improving understanding amongst participants from the trade and development communities of the human rights-based concerns regarding trade and trade rules. The Study Session also improved understanding amongst the participants from the trade communities as to how a human rights approach can be useful in contributing to ensuring that trade and trade rules promote sustainable development. The Study Session thus met its objective of starting a well-informed, constructive dialogue between human rights professionals, members of the WTO community, and other people involved in the trade-sustainable development-human rights debate.

Moreover, the Study Session has already had concrete positive outcomes: participants who did not know each other previously have since been in touch to exchange information and analysis on issues of common concern, and all observers agreed that the level of discussion on trade issues at the UN Sub-Commission on Promotion and Protection of Human Rights immediately after the Study Session was higher and more constructive than in previous years.

Given the high level of interest expressed by participants in the first Study Session on the WTO for Human Rights professionals, as well as by people who were unable to attend but would like to, 3D Associates has decided to organise further such Study Sessions, in collaboration with the International Institute for Sustainable Development (IISD) and Forum-Asia (Asian Forum on Human Rights and Development). The dates for the next two WTO Study Sessions have been set for 28-29 September (Nepal) and early 2002 (Geneva region).

Kitty Arambulo, Office of the High Commissioner for Human Rights, Geneva, Switzerland

Elke Atzler, Deputy Permanent Representative, Austrian Mission, Geneva, Switzerland.

Martin Brookes, Economic Relations Advisor, Amnesty International, London, UK.

Jessica Cave, UK Department for International Development, London, UK.

Caroline Dommen, 3D Associates, Geneva, Switzerland.

Usha Dwarka-Canabady, Deputy Permanent Representative, Mauritian Mission, Geneva, Switzerland.

Otto Thomas Genee, Deputy Permanent Representative to the WTO, Netherlands Mission, Geneva, Switzerland.

Brewster Grace, Representative for Trade and Development, Quaker UN Office, Geneva, Switzerland.

Fried van Hoof, Member, Sub-Commission on Promotion and Protection of Human Rights, Utrecht, Netherlands.

Rogier Huizenga, Inter-Parliamentary Union, Geneva, Switzerland.

Kamol Kamoltrakul, Programme Director, Forum-Asia, Bangkok, Thailand.

Laura Kelly, Food Trade Policy Advisor, Action Aid, London, UK.

Bob Kyloh, Director, Policy Unit, Bureau for Workers’ Activities, International Labour Organisation, Geneva, Switzerland.

Rajsoomer Lallah, Member, Human Rights Committee, Port-Louis, Mauritius.

Virginia Leary, Professor, Hastings College of Law, and State University of NY, USA.

James Love, Director, Consumer Project on Technology, Washington DC, USA.

Gabrielle Marceau, Counselor, Legal Affairs Division, World Trade Organisation, Geneva, Switzerland.

Ricardo Meléndez-Ortiz, Director, International Centre for Trade and Sustainable Development, Geneva, Switzerland.

Nathalie Mivelaz, Organisation Mondiale Contre la Torture, Geneva, Switzerland.

Nathalie Prouvez, International Commission of Jurists, Geneva, Switzerland.

J. Daniel Taillant, Centro de Derechos Humanos y Medio Ambiente, Cordoba, Argentina.

Simon Walker, Research and Right to Development Branch, Office of the High Commissioner for Human Rights, Geneva, Switzerland.

David Weissbrodt, Fredrikson and Byron Professor of Law, University of Minnesota Law School, and Chair (2001) Sub-Commission on Promotion and Protection of Human Rights, Minneapolis, USA.

Jochem Wiers, Legal Affairs Division, World Trade Organisation, Geneva, Switzerland.