Victory in CrisisKamalesh AdhikariPhd Student, Regulatory Institutions NetworkThe Australian National University, Canberrakamalesh.firstname.lastname@example.org
Nepal is a land-locked least developed economy. The country is biodiversity rich and agriculture contributes more than 30 percent to the GDP. Agriculture is subsistence-based and households depending on farming constitute around 80 percent of the total population. 103 ethnic groups and 59 listed as indigenous (??). Informal seed system dominates the seed market. Out of 75 districts, more than 40 districts are categorized as food insecure (rice, wheat and maize are major crops)
Nepal is considered as one of the most open economies in South Asia, but the country’s trade is still heavily centered in India. Nepal opted to become a member of the GATT in 1988 and was an observer of the WTO in 1995. It became a WTO member in 2004, following its accession negotiations initiated in 1998. Nepal’s WTO negotiations as well as recent negotiations for a TIFA with the USA tell us a story of “a victory that is now in crisis”.
As a WTO member, Nepal is required to implement the global intellectual property rules of TRIPS but pre-accession negotiations forced for TRIPS-plus rules. 9 August 2003: ▪ A notice to join UPOV was sent (a day before the Nepal delegation had to move for Geneva.) ▪ The government invited inputs to this issue. 11 August: ▪ A core meeting of NAFOS was held. ▪ Meeting decided to publish articles and posters, saying No to UPOV Membership. 13 August: ▪ Conversation with the Geneva delegation did upset the CSOs.
13 August: ▪ Press conference was organized to fend off the pressure to join UPOV. 15 August: ▪ The final day of the negotiation in Geneva had a good news: "...Nepal would also look at other WIPO and IP related Conventions, e.g., Geneva Phonograms Convention, UPOV 91, WIPO Copyright Treaty and WIPO Performances and Phonograms Treaty, in terms of national interest and explore the possibility of joining them in the future, as appropriate.” (emphasis in red) Nepal would enact a separate free-standing national legislation for plant variety protection.
With the same text, Nepal became a WTO member in 2004. Consultation and legal efforts were initiated to enact a sui generis national law for plant variety protection by 2006. A draft law was ready but was not enacted later due to a WTO decision on TRIPS exemption in 2005. “Don’t ask about the road to a village where you don’t have to go”… A case in point is the debate on CSO representation in UPOV. Then surfaced the issue of TIFA with the US.
Bilateral negotiations for the TIFA initiated mainly after the collapse of garment exports in 2005. So far, only the TIFA has been signed but pressures are mounting regarding the permission for seeds from Monsanto. The USAID involvement on the issue was largely criticized (No to Monsanto Campaign). There is a risk that the government might surrender to implement strict intellectual property protection for plant varieties, among others, through bilateral pressures supported by the tiny private seed business in Nepal. Poor countries need to exchange their experiences and find common strategies to address this issue at multilateral, bilateral, regional and national levels.
GATT: General Agreement on Tariffs and Trade, 1947 which later on resulted as the WTO in 1995 (GATT 1994 itself still remains as a WTO agreement dealing with liberalizations of goods trade). WTO: World Trade Organization, a rules-based multilateral trading system that has now more than 150 members TRIPS: The WTO’s Agreement on Trade-Related Aspects of Intellectual Property Rights, which WTO members must implement as part of single undertaking. TIFA: Trade and Investment Framework Agreement, which eventually leads to a comprehensive bilateral trade and investment agreement with the USA. NAFOS: National Alliance for Food Security in Nepal, a loose network of civil society groups working on food security in the country. UPOV: International Union for the Protection of Plant Varieties is known as a global intellectual property agreement to guarantee breeders’ rights over new seeds (plant varieties). This agreement was first adopted in 1961 and then revised in 1972, 1978 and 1991. The latest revision is