[A2k] Countries call on Customs Organisation to be member-driven, transparent

[Sangeeta]

Below is a news report on the latest development at the World Customs
Organisation published in the South North Development Monitor.

Sangeeta
----------------------------------------


Countries call on World Customs Organisation to be member-driven,
transparent

SUNS #6561 Monday 6 October 2008

Geneva, 3 Oct (Sangeeta Shashikant) -- Brazil and Argentina have called on
the World Customs Organisation (WCO) to establish a more "member-driven"
process and greater transparency in its activities on developing standards
for enforcing intellectual property, especially if they have a bearing on
"non-customs" issues such as "public health" and "access to culture and
knowledge".

A proposal by the two countries is the latest development in the process in
which the WCO is attempting to create new international standards on the
enforcement of intellectual property rights, and in which several developing
countries are very concerned about both the substance and the process.

In a note verbal sent to the WCO Secretariat, the two countries stressed the
need for the WCO Secretariat to respect the "member-driven" nature of the
organisation, adding that WCO Member States are in charge of, inter alia,
"determining the content and form of possible recommendations for action to
be submitted to other competent bodies within the structure of the
Organisation".

They also pressed for greater participation of public health, consumer and
other public interest groups in the WCO and for documents under discussion
at the WCO to be made publicly available.

[Presently, it is very difficult or impossible for public-interest NGOs or
even some inter-governmental organizations to take part in WCO meetings even
as observers, although private-sector organizations have been allowed to
participate.]

Brazil and Argentina have presented a proposal for the inclusion of a new
item entitled "Transparency, legitimacy and a member-driven process" to the
agenda of the SECURE Working Group's 4th session on 30-31 October.

The Group is tasked with developing "Provisional Standards to be Employed by
Customs for Uniform Rights Enforcement (SECURE)". The session is also
expected to discuss the Group's Draft Terms of Reference, the WCO Action
Plan and the Model Provisions.

The work of this group has come under severe criticism from several
developing countries on substantive and procedural grounds.

The countries believe that the proposed standards are largely TRIPS-plus
(containing obligations deeper than required by the WTO's TRIPS agreement)
and could create many barriers for developing countries in accessing
essential goods such as medicines and knowledge.

Some developing countries have also raised many concerns about the lack of
transparency and accountability on the part of the WCO Secretariat. They
feel that the Secretariat has been trying to push for a quick adoption of
the draft Standards by its governing bodies (including through using
manipulative methods), notwithstanding the clear lack of consensus on the
SECURE document.

The proposal, titled "Ensuring transparency and a legitimate, member-driven
process in the SECURE Working Group", suggested that the Group decide that
the documents concerning the SECURE Working Group for consideration by other
WCO bodies, in particular the Policy Commission and the Council, be
forwarded to said bodies once approved by the WCO Member States.

It also asked that steps be taken to make publicly available the documents
being considered by the Working Group.

Moreover, it said that the Group "should recognize that, in view of the fact
that the SECURE Working Group is still in the process of discussing the
documents it has been entrusted to consider, none of [the] documents is ripe
for implementation in whatever manner."

The proposal also requests the inclusion on the agenda of another item, i.e.
"Draft Terms of Reference".

The Brazil-Argentina document stated that "a number of issues of a
procedural nature should be addressed and settled with a view to ensure the
legitimacy of the work of SECURE", since the SECURE Working Group continues
to be engaged in the discussion of the draft "SECURE standards and that
other documents remain in its docket waiting for consideration in due time."

The first issue it raised is with regards to "Member-driven preparation of
documents by the SECURE Working Group".

It stated that document entitled Report of SECURE Working Group (document
SP0269E1) prepared for consideration by the 59th Policy Commission "sent a
worrying signal in the conduct of business in the Organisation" as that
Report was "elaborated with no regard to the member-driven nature expected
from the SECURE process given that its preparation was made without previous
consultation nor approval by the WCO membership".

It added that "the document portrayed to the Policy Commission a distorted
representation of the status of discussions in the SECURE Working Group,
with scant account of the positions expressed by the various delegations".
It cautioned: "This example should be avoided".

[In June this year, six developing countries (Argentina, Brazil, Cuba,
Ecuador, China and Uruguay) issued a document criticizing the WCO
Secretariat over its Report, which was prepared following the Working
Group's meeting in April 2008 and was submitted to the WCO Policy Commission
that met in June (See SUNS #6535 dated 11 August 2008).]

Added the Brazil-Argentina document: "While the WCO Secretariat provides
insightful inputs to the discussions that take place in the framework of the
SECURE Working Group, leadership of the discussion belongs to the WCO Member
states. This prerogative implies that the WCO Member states are in charge of
inter alia, determining the content and form of possible recommendations for
action to be submitted to other competent bodies within the structure of the
Organisation".

As a corollary, the paper stated, "it follows that the preparation of any
document concerning the activities of the Working Group with a view to being
considered by other WCO bodies should be the object of previous consultation
and approval by WCO Member States", adding that "This understanding should
apply to all cases, irrespective of whether the task of preparing said
documents or drafts thereof has been entrusted to the WCO Secretariat".

The second issue that the paper raised is on  "Enhancing Transparency". It
states: "There is no apparent reason why the work of SECURE should benefit
only from inputs originating from representative of a part of the private
sector".

It added that the "activities taking place within the SECURE Working Group
address issues whose effects extend beyond the reach of border measures,
since some of the topics currently in discussion have a bearing on
non-customs issues such as public health ... access to culture and knowledge
(e.g., definition proposed in the "Model Provisions" for the "goods
infringing intellectual property rights") and due process of law."

Accordingly, it stressed that "a variety of stakeholders might be affected
by the work underway within the SECURE Working Group" and "they may have a
vested legitimate interest in following the developments within forum".

Consequently, the paper called or "public health, consumer and other public
interest groups to be given the opportunity to follow the work of SECURE".

The paper highlighted that "participation by interested group is made
difficult by the fact that the relevant documents are not publicly
accessible in the WCO website", adding that while "some delegations might
feel the need to protect under secrecy some aspects of the documents, this
should not lead to the current prevailing ban in force with respect to
access to the documents being considered by the SECURE Working Group."

It added that 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."

The paper also presented its understanding of where things stand in relation
to the work of SECURE.

It stated that the 2007 June Council session decided to start discussions on
the document "SECURE Standards" in the framework of the SECURE Working
Group, created by a decision taken during the same Council session.

It added that the decision took the provisional version of the "SECURE
standards", prepared by the Secretariat, merely as a basis for the
discussions that took place during the first meeting of the Working Group,
which took place in October 2007.

But "since then the draft version of the  SECURE standards' document has
been modified to a large extent and the document is still open for further
changes in view of the fact that not all concerns by the Working Group
members have been addressed", thus the "SECURE standards" remains a "draft
document".

The paper said that discussions on the Working Group's Draft Terms of
Reference, the WCO Action Plan and the Model Provisions are still expected
and that "none of the documents submitted for discussion at the SECURE
Working Group is ripe for implementation, in particular in the context of
technical assistance".+