In October 2008 various researchers of our interdisciplinary research group on cultural property went to Geneva in order to observe international negotiations at the World Intellectual Property Organisation (WIPO). In particular, we attended the 13th session of the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC GRTKF), as this is the main international arena concerned with constituting rights for cultural property. The concern of the economic sub-project – The Law and Economics of cultural property: An economic analysis of the institutions of rule-making – is to understand the incentives nations and their delegates have to engage in this process.
Normatively speaking, the main research focus of our project is an economic justification for the establishment of special cultural property rights (CPR). A cultural property right entails the allocation of a specific right of disposition over cultural property, for example, to an indigenous group that is understood as a collective entity. Using welfare economics, in the first phase of this project, we try to find out the normative requirements for such a cultural property right, against which we can then compare the actual rule-making process within the WIPO IGC. From the resulting delta analysis we hope to develop policy recommendations for the creation of an optimal international cultural property regime.
Up until now, we are still in the process of designing a normative CPR, so that the initial field research served mainly to enhance our understanding of the international norm-making process. Our research approach was to conduct open interviews with delegates from various countries and could be characterized as participating observation, as we attended the IGC plenary sessions and side events in order to collect narrative evidence of the negotiation process. The interviews with representatives of particular delegations further clarified our understanding of the process dynamics. Being new to such international negotiations, it was of great help to have our research colleagues from the sub-projects of public international law and ethnography of communication with us, who had considerable previous experience with negotiations of the kind we observed in the IGC.
But not only towards the untrained observer the negotiation in the IGC seemed to be stuck as there was absolutely no convergence of opinions on substantive issues to be detected. Rather, delegations negotiated about procedural question, i.e. in which format best to potentially talk about substantive issues. Explaining these observations, we devised a decision model named Minimal Results. At the core of this model lies the assumption that it is the basic incentive for a committee to perpetuate its existence. Very generally, this model states that delegations must in effect show progress, however slight, in order to justify the existence of the IGC. In effect, this explains why deliberations on procedural matters may even take centre stage during the negotiations, where it might be expected to have tough substantial bargaining instead.
However, at the end of the week there was really no agreed upon item upon which future work might be based. That is why our scientific interest shifted to the question why states are actually taking part in fruitless activities of this sort. From an economic point of view, when negotiation is costly and the benefits of the results are uncertain, we have a tough time explaining why negotiations continue. Because of the fact that the question of effectiveness of international negotiation is neither sufficiently treated in the economic nor in the political literature, an in depths analysis of this question will be performed in the future. The envisaged paper is expected to be available at the end of March. It will contain the model of minimal results placed in the greater context of international negotiation, containing an explanation why seemingly fruitless negotiations may nevertheless lead to successful international norm-making.
With this exercise we expect to gain insights into the dynamics of the international norm-making process, which will be useful in reaching the overall goals of our research project, which is to explain, whether the WIPO is able to achieve building an international regime holding up to normative standards.
Matthias Lankau is research associate in the sub-project “The Law and Economics of cultural property: An institutional economics analysis of rule-making”.