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Some indicators of the growing salience of multilateral negotiations
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A World Created by Negotiation

Diplomacy and Law
Some indicators of the growing salience of multilateral negotiations

Rule of Law

The urge to live under a “rule of law” is one of the strongest human urges. It explains, amongst other things, why some countries, like the United States, are stronger, wealthier and more creative than many other parts of the world.
Photo by Jason OX4

Amoral.
Expediency above principle.
National interest above equity.
Might is right.
End justifies the means

In my twenty years as a diplomat I have lived in a political world. I have often been told that diplomacy is an “amoral” profession. Not immoral but amoral. Expediency above principle. National interest above equity. Might is right. The end justifies the means.

But, I have found that this is not always true.
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Common Law

A diplomat, like a lawyer, inhabits a polity.
A common law system is one of the main characteristics of the US constitutional system. It gives lawyers and judges a key role in shaping the domestic polity.
Winston Churchill describes this process as follows:- "Both sovereign and subject were in practice bound by the Common Law, and the liberties of Englishmen rested not on any enactment of the State, but on immemorial slow-growing custom declared by juries of free men who gave their verdicts case by case in open court.
that our professional ancestors inhabited.
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Diplomats and Lawyers

Something is similar is happening in the international polity. Diplomats today are like the lawyers in the early years of the Common Law. Using custom and precedent, and drawing strength from international public opinion, they are creating the institutional and legislative foundation of a world that is very different from the amoral world that our professional ancestors inhabited.

Diplomats are negotiating the foundations of new system of doing business globally. The bandwidth of their activities has increased enormously and is likely to increase further. What would be of interest to you is that much of this expanded bandwidth has to do with international law

PART 2

How does the international polity of today differs from its earlier versions?

The World does not look like this everywhere


The number of countries has more than tripled during this period. The world is much more complicated than when Britannia ruled the waves less than a hundred years ago.
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Most parts of the world look like this

Firstly, we live in more crowded world. There are many more of us.
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We live in a crowded world

Global population has almost tripled in the last fifty years.
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The world is much more complicated than when Britannia ruled the waves less than a hundred years ago.

55 members of the UN


The World Today

193 Members of the UN

We also live in a world that is more interconnected

Secondly, it is not just the number of people and the countries that has increased. More people and more countries mean many more interactions and many more transactions amongst peoples and countries. We live in a world that is inter-connected in ways that were inconceivable even a few decades ago.
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Economic crisis - an international, coordinated response

Thirdly, inter-connections have produced much greater inter-dependence. Economic interdependence is perhaps most obvious.

The financial meltdown and housing crash of 2008 was arrested in part because policy-makers, learning from previous experience, embraced globalisaton. Enormous efforts were made to launch a coordinated international economic fire-fighting effort through institutions such as the G-20

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Terms such as “Globalisation” and “Interlinked Economy” have been invented to describe the phenomenon where countries trade more with each other and invest more in each others countries.

9/11 - an international, coordinated response

We are also acutely conscious that our security is interdependent. Indian citizens died in the World Trade Center on 9/11 and U.S. citizens were gunned down by Islamist terrorists in Mumbai on 26/11/2008.
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Afghanistan - an international effort

The battle against terror is common cause for most nations in the world.
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ISIS - international response

The opposing sides of the Cold War, the Allies and Axis of World War II and the Allies and Central Powers of World War I are all on the same side of the War against terror. Collective security has come to stay.

Ebola - an international, coordinated response

Conventional War is disappearing

Fourthly, we are - dare I say? – a more law-abiding world. It is a fact that no conventional war has been fought for some and that the number of deaths in battle has come down sharply.

Not just interconnected; changing very fast

for the better?
Steven Pinker, the Harvard social scientist, in his book “The Better Angels of Nature” makes a case that violence is generally declining.

Adherence to Human Rights

A more law abiding world 
There is greater adherence to human rights globally
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More people are free than ever before in history. Half of the world lives in democracies, even though flawed

We also live in a world that is much freer than what it was a few decades ago. More than half of the world lives in democracies and freedom – even if it is flawed. Freedom is under constant threat but that has not prevented its spread.
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Capital flow from rich to poor

Official+ private
Fifthly, the convergence that has taken place on attitudes towards human rights has been accompanied by a convergence of views on development. There was no development assistance six decades ago. Nations did not give to each other. They only took. This is a fundamental change in the way nations view each other.

Humanitarian Intervention

The international community is more willing to intervene
Sixth, nations today invest not only in economic development but in humanitarianism. Humanitarianism is not just helping people in distress. It is help that is given without any expectation of return.

The term peacekeeping was invented by the United Nations as a method of conflict resolution and management. It has grown far beyond that. Countries today send peacekeepers to conflicts in which they have no stake and nothing to gain except peace in a distant part of the world. This is unprecedented in world history.

Humanitarian imperative

No political motive
Seventh, as the humanitarian imperative has acquired strength, so has the desire of the international community to enforce accountability for those who create these crises. Sovereignty is no longer a defence against what the international community considers a crime.

A greater willingness to intervene

It might shock you to know that Hitler broke no law in killing six million Jews. The horror of the holocaust is a stain on humanity as were the killings in Yugoslavia, in Cambodia and in Rwanda. But, if it is any satisfaction to you, all leaders of the world have today agreed that the international community has not just the right to intervene BUT has the responsibility to do so when faced with crimes against humanity, ethnic cleansing, genocide and war crimes.
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Non State Actors

Eighth, there is a democratization of the international polity. Non-governmental organisations by sheer persistence, relentless focus and quality interventions have converted themselves into Non-state actors. The State no longer has a monopoly on representing the interests of its citizens. As an example, Amnesty International has a more powerful voice and a more credible voice than many Governments.

Global Commons

Ninth, the appearance of efforts to manage global commons. Nations realize that the atmosphere, the sea and the environment are the property of the entire world and have to be managed by the entire world. That the rules of the game are still being established are being demonstrated in the Climate Change Talks. That there will be progress is demonstrated by the Law of the Sea.
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Asian Century

Tenth, the dispersal of global economic power. The 21st century has been called the Asian century. It has also been referred to as the era of the “The Rise of the Rest.” Be that as it may, what is indisputable is that Asia’ share of the world economy is rising. It is also beyond dispute that the rate of economic growth recorded by Asian countries in the past few decades is the most rapid in human history. As for the rest, it has been predicted that the economic output of Brazil, India an China will exceed the combined output of the United States, Germany, United Kingdom, France, Italy and Canada in the next 6 to 7 years.

PART 3

“Where do either law or diplomacy - or both - come into the 10 changes just described?” My answer is: Everywhere.

They did not do so by using force. The dispersal of global power significantly reduces the leverage that the great powers of the world have over the rest.

They did so through negotiation. Patient, painstaking, persistent negotiation. And they work with lawyers.

Let me now give you an idea of what has been achieved through negotiation in the ten areas of transformation that I enumerated in the first part of my talk. I will not however, in this section, proceed point by point but will discuss the diplomatic processes behind some of these developments.

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The easiest to discuss is the creation and growth of an international economic and financial architecture. A clutch of institutions dominate the management of the world’s economy. All of them have rules.

The International Monetary Fund monitors and tries to maintain exchange-rate stability without which international commercial interaction would be far more complicated.

Let us turn to the G20. It is a group of the 20 largest economies in the world and has replaced the earlier G7. That in itself underscores the point that I made about dispersal of economic power. What is relevant here is not so much the discussions that take place, as per diplomatic procedure, on international economic issues. The relevant point is something called the Basel Accords. There are three of them which are setting rules for international banking. Economists, lawyers, bankers and diplomats have worked together to negotiate an outcome that is binding. Joining such an arrangement confers benefits and in time the “rules” flowing from the Basel Accords could constitute the basis of international laws that banks must obey.

World Trade

The World Trade Organisation was established by negotiation amongst 123 countries. What is interesting is how most nations of the world have accepted the “principles of international trade. ” These principle include Non-discrimination and its two major components – national treatment and MFN – most favoured nation – status and the Removal of tariffs through binding and enforceable commitments. It is also interesting to note that the words “principle” and “rule” are often used interchangeably.

The WTO has dispute settlement mechanism which is central to the success of the international trade regime. This mechanism, according to the WTO “underscores the rule of law.”

We are all aware of the issue of Intellectual Property Rights and their enforcement across the world.

Do we see in all this, a law of international trade that is developing? Are WTO principles becoming customary international law? Is the dispute settlement mechanism a court?

Human Rights Law

Photo by Jordan Lewin

Humanitarian Law

We refer frequently to international human rights law and international humanitarian law. Where did these emerge from? It appears that humanitarian law was created by a group of diplomats who got together in a series of conferences in Hague a little over a century ago. These diplomats negotiated a series of diplomatic agreements to govern behavior during war. They have over time become accepted as law and are enforced as such.

Humanitarian Law

International Human Rights Law is another diplomatic edifice that is still work under progress. The Universal Declaration of Human Rights and a series of 10 treaties are considered to be the basic corpus of human rights law. Most countries have acceded to atleast some of these treaties – two of which International Covenant on Civil and Political Rights and its two Optional Protocols, and the International Covenant on Economic, Social and Cultural Rights, form along with the Universal Declaration of Human Rights, the International Bill of Human Rights.

Charles Taylor

According to the United Nations High Commissioner for Refugees, “A series of international human rights treaties and other instruments adopted since 1945 have conferred legal form on inherent human rights and developed the body of international human rights.” These and other treaties have outlawed amongst other things, torture, genocide, discrimination against women, etc. States and individuals in authority are not only obliged to respect the obligations that they have agreed to undertake but are now increasingly held accountable for violations.

Do the names Slobodan Milosevic and Charles Taylor mean anything to you? They are the former Presidents of Serbia and Liberia. They were brought to justice before international tribunals. The Presidents of Kenya and Sudan have also been indicted by such tribunals.

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A series of international courts – on Yugoslavia, on Rwanda and on Sierra Leone – were set up with Security Council authorization to try crimes under international law. This is international law in practice. This is not to say that there are no infirmities in the process. India, for instance, like the United States, is strongly opposed to the some aspects of the International Criminal Court statute. That does not however alter the fact that a group of lawyers have turned negotiated outcomes into living institutions that are imprisoning people who were earlier beyond the reach of the law.

Their mandates were finalized through negotiations between diplomats and international lawyers.


Collective Security system that relies on negotiations

Most of these courts required to be authorized by the UN Security Council. The Security Council is probably the most powerful collective security body the world has ever seen. It was meant to deal with threats to international peace and security either using peaceful means (under Chapter VI of the UN Charter) or force (Chapter VII).

The extent to which it has succeeded in doing so is a matter of debate. There are strong supporters and strong opponents. I shall not get into that argument or debate.

The Security Council creating law 


The Security Council is literally laying down the law about the rights of children, rights of unarmed civilians and the rights of women. Under the charter, it can do so only in situations where there is a threat to international peace and security. But it does not define what constitutes a threat. By a process of negotiation and consensus-building, the Security Council has attempted to lay down the law on these issues even when there is no armed conflict.

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What is a matter of fact, and not of opinion, is the manner in which the diplomatic ambit of the Charter has been extended by the Council. The Security Council Resolution is a unique legal instrument in the political history of the world. Countries joining the United Nations – and almost all countries have – have to agree to obey Security Council resolutions. They do so even if they are not a part of the process that generates the resolution. The resolution is binding. It has the force of law.

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Let us turn to development. The outcomes of negotiated processes here are actually staggering. I will not get into discussion on how well aid works and if it works at all. I will focus your attention on something called the Millennium Development Goals. They were a set of development goals that all countries, at the level of Head of State and Government, endorsed at the so-called “Millennium Summit” in 2000.


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Among these goals is MDG 3, the “Promotion of Gender Equality and Empowerment of Women.” Why do I bring this up? We all know that there are countries in the world where women do not vote or drive. Even these countries agreed to these goals. They may be tardy in its implementation but the fact is that they have acknowledged these as targets. Their performance in meeting these targets can be measured. What cannot be done through domestic legislation was brought in through an international commitment.

Monterrey Consensus


I will also refer you to something called the “Monterrey Consensus.” It is a little known document by which all rich countries agreed that they should make 0.7% of their Gross National Income available as domestic assistance. This number was arrived at through negotiation.
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PART 3

The countries were not forced to adopt these principles. They were persuaded through negotiation.

First sitting President to visit Europe, 1919.

The growth of multilateralism has been spectacular. Woodrow Wilson was the first sitting US President to visit Europe, 1919.

President Obama has travelled to attend G8/G20, NATO, US-EU, Summit of Americas, North American, Climate Change, Nuclear Change, ASEAN, APEC and East Asia Summit meetings.
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Attended 1 multilateral conference- NATO

The only multilateral meeting that President Eisenhower attended abroad was a NATO Summit.
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NATO, G7, ASEAN meetings and the Cancun Summit

President George W. Bush travelled overseas to attend NATO, US-EU, G8, Summit of Americas, North American, Red Sea, Central American Republic and APEC meetings.
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NATO, US-EU, G8, Summit of Americas, North American, Red Sea, Central American Republic and APEC

President George W. Bush travelled overseas to attend NATO, US-EU, G8, Summit of Americas, North American, Red Sea, Central American Republic and APEC meetings.
Photo by Preston Kemp

G8/G20, NATO, US-EU, Summit of Americas, North American, Climate Change, Nuclear Change, ASEAN, APEC and East Asia Summit

. President Obama has travelled to attend G8/G20, NATO, US-EU, Summit of Americas, North American, Climate Change, Nuclear Change, ASEAN, APEC and East Asia Summit meetings
Photo by Barack Obama

PART 4

Multilateral negotiations are daunting exercises. Why?

Negotiations between 2 parties are difficult. Imagine 150 parties

Slow, tortuous, painful

The diplomacy that goes behind multilateral outcomes is long, slow, tortuous and painful.

Think of the NGO that spearheaded a campaign to ban Land Mines and went to win the Nobel.

Subjects being negotiated are often unpalatable or worse to parties

Imagine that you were trying to sell to a country that does not allow women the right to drive the idea of equality of women? How would you do it?

Suppose this country is not alone.

Suppose you need the help of that country because it has some rare natural resources. That it was a generous contributor to other causes dear to you.

How do you do the convincing. Daunting, is it not? Well diplomats have succeeded against odds roughly approximating this and against greater odds.

Multiple decison-making levels

All need to be convinced

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It involves very complicated questions of procedure. What goes into the agenda? Who decides that? Who speaks? Why should everyone’s voice have the same weight? Who decided that?

Cross cultural

They involve reconciling differences that often have very profound cultural or civilisational roots
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PART 5

How are these tackled? What techniques do professional negotiators use during multilateral negotiations. This part enumerates some of these techniques.

Learn from law and politics

Multilateral negotiations combine politics and law. Techniques used in both are relevant to the practice of multilateral negotiations.
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Alliances

Alliances are essential. Alliances not just between nations, but between nations, non-state actors, international organisations and other influential players or actors.

The making - and breaking - of alliances is a staple of multilateral diplomacy

The slide shows Soviet Marshal Zhukov and British Field Marshal Montgomery walking in Berlin after WWII. The allies were soon to become enemies.

Prepare, prepare, and then prepare some more.
Know your brief well. Know your interlocutors brief better

Multilateral negotiations, like legal arguments, are based on briefs. All sides have positions and usually these positions, like one's own, is prepared on the basis of certain facts and certain assumptions. Like good lawyers, diplomats need to be certain of their facts and assumptions and of their opponents - in order to defeat them in argumentation.

Mastery over procedure

Common to both parliamentary systems and law, procedure is essential for progress. Mastery over procedure is essential.
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Set the agenda, frame the main arguments of the debate

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Cultural knowledge

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Strategy is critical: What constitutes victory, when is it advantageous to compromise

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PART 6

CULTURES AND DIPLOMATIC CULTURES
Diplomats come across multiple cultures. For the purposes of this presentation we shall look at the works of three authors – Raymond Cohen, Samuel Hungtingdon and Banerjee/Duflo – to define some of the large distinct “diplomatic cultures.” Since this presentation is from a practitioners perspective, I have taken liberties with the term “culture”. Its usage is likely to vary from the sense it used in a pure academic setting. My reference is to the large groups of countries that negotiate together during in multilateral settings.

3 "conversations" taking place in multilaterally.

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  • Security - mostly at the UN
  • Rich country-poor country - e.g. Trade talks, climate change talks
  • Democracy & human rights - the debate on sovereignty is part of this narrative

PART 6 (a)

THE CLASH OF CIVILISATIONS
The Clash of Civilizations (COC) is a hypothesis that people's cultural and religious identities will be the primary source of conflict in the post-Cold War world. It was proposed by political scientist Samuel P. Huntington in a 1992 lecture at the American Enterprise Institute, which was then developed in a 1993 Foreign Affairs article titled "The Clash of Civilizations?"

Huntington later expanded his thesis in a 1996 book The Clash of Civilizations and the Remaking of World Order.

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The conversation on democracy and human rights is being discussed with the help of Huntingdon’s famous essay “Clash of Civilisations”. It is also relevant to the multilateral conversation on peace and security

I don’t necessarily endorse Huntingdon’s conclusions, but it is a very useful frame of reference.

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Concepts such as First World, Third World etc are obsolete.
The world is divided into 8 CIVILISATIONS

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Western civilisaton

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Confucian

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Islamic

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Hindu

Slavic-Orthodox

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Latin American

African

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Western Civilisation sees itself as
(a) Modern
(b) Universal
Neither is the case

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PART 6 (B)

POOR ECONOMICS 
The Clash of Civilizations (COC) is a hypothesis that people's cultural and religious identities will be the primary source of conflict in the post-Cold War world. It was proposed by political scientist Samuel P. Huntington in a 1992 lecture at the American Enterprise Institute, which was then developed in a 1993 Foreign Affairs article titled "The Clash of Civilizations?"

Huntington later expanded his thesis in a 1996 book The Clash of Civilizations and the Remaking of World Order.

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Poor Economics rejects broad generalizations and formulaic thinking. Instead, the authors help to understand how the poor really think and make decisions on such matters as education, healthcare, savings, entrepreneurship, and a variety of other issues.

The poor think differently & have different priorities. This affects multilateral negotiations

Trade negotiations, and now, Climate Change negotiations, bring rich and poor nations to the negotiating table. It is important to recognise that the poor think differently. Their priorities are different.

These differences in economic condition account for some of the seemingly irreconcilable differences in negotiations on trade and economic matters.

The idea behind this section is to ask some questions that shed some light on the thinking of the poor and their priorities.
SEE:-
10.1 Lecture: Challenges of world poverty: Conclusion
Abhijit Banerjee, Esther Duflo / Massachusetts Institute of Technology
http://www.pooreconomics.com/sites/default/files/A%20PDF%20of%20the%20slide...

Slogans don't work

  • Free markets for the poor
  • Make human rights substantial
  • Deal with conflict first
  • Give more money to the poorest
  • Foreign aid kills development
"The poor appear... by turns lazy or enterprising, noble or thievish, angry or passive, helpless of self sufficient.... Policy stances tend to be captured in simple formulas..."
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  • How do the poor allocate resources?
  • Do they do so differently from the rich?
  • How and why?
  • Are you willing to eat less for a better TV or cellphone?
The poor are no less rational and aspire no less for a better life. They put very careful though into their choices.

See
1.1 Lecture: Foundations of Development Policy
Abhijit Banerjee, Esther Duflo / Massachusetts Institute of Technology
http://www.pooreconomics.com/sites/default/files/A%20PDF%20of%20the%20lectu...

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10.1 Lecture: Challenges of world poverty: Conclusion
Abhijit Banerjee, Esther Duflo / Massachusetts Institute of Technologyhttp://www.pooreconomics.com/sites/default/files/A%20PDF%20of%20the%20slides.pdf

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  • How do food choices change with rising incomes?
  • Tasty vs nurtitious
SEE:-
2.2 Lecture: Challenges of world poverty: Nutrition-based poverty traps
Abhijit Banerjee, Esther Duflo / Massachusetts Institute of Technologyhttp://www.pooreconomics.com/sites/default/files/14.73_Food_Lecture5.pdf
Photo by Paco CT

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  • What do the poor need to become healthy?
  • Investments in public health vs intellectual property debate
  • Mosquito net vs malaria vaccine
SEE:-
3.2 Lecture: Challenges of world poverty: Low-Hanging Fruit
Abhijit Banerjee, Esther Duflo / Massachusetts Institute of Technologyhttp://www.pooreconomics.com/sites/default/files/Lecture8_LowHangingFruit.pdf
Photo by kaniths

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None of these, you will notice, figure in any substantial way on the trade agenda. These are the health concerns of developing countries. Not intellectual property.

SEE
3.2 Lecture: Challenges of world poverty: Low-Hanging Fruit
Abhijit Banerjee, Esther Duflo / Massachusetts Institute of Technology
http://www.pooreconomics.com/sites/default/files/Lecture8_LowHangingFruit.p...