The race for the first ever WTO amendment: some key facts

By Peter Ungphakorn
POSTED JULY 31, 2016 | UPDATED March 5, 2018

The World Trade Organization agreements are over 20 years old. Economic and trade needs are changing fast. And yet the agreements have never been updated — until now. Two amendments have reached the target. To achieve that they needed 110 ratifications, two thirds of the WTO’s 164 members.

The first was on access to medicines in poor countries. It’s a technical provision — explained here — to solve a problem that emerged after the WTO’s intellectual property agreement (TRIPS) took effect in 1995. It allows generic versions of patented medicines to be made under compulsory licence and exported to countries unable to manufacture the medicines themselves.

Click the image to see it full size

KEY FACTS
1. Why have they taken so long?
2. Will the amendments apply to everyone?
3. How the threshold was crossed

SOME LISTS
1. Pharmaceutical patent amenment
— Countries that have not yet accepted
— Countries that have accepted
2. Trade facilitation amendment
— Countries that have not yet accepted
— Countries that have accepted

SEE ALSO
Can EU law really dictate WTO rules?

The amendment was agreed as long ago as 2005. After a slow start finally reached the two-thirds target, although exactly how the ratifications should be counted remains in doubt for a bizarre reason (more below). However, this is no big deal for the real world: the amendment’s provisions are already in place.

The other amendment is much more significant economically. It’s a package on cutting red tape in customs and other border procedures that also includes assistance for developing countries.

This “Trade Facilitation Agreement” was a response to evolving  trading conditions. Successive rounds of negotiations had lowered tariffs, and as a result, bureaucratic procedures emerged as a more visible hindrance to trade.

Although a new agreement, it is treated as an amendment because it is added to the annex on trade in goods (Annex 1A) in the WTO Agreement, which already includes numerous agreements such as on agriculture and anti-dumping.

The trade facilitation deal was initially struck at the WTO’s Bali Ministerial Conference in December 2013 but the legal text was not approved until November 2014. India delayed the approval as a bargaining chip to secure changes on a decision on agriculture that it had originally agreed in Bali.

Why have they taken so long?

It’s only recently that the two amendments’ ratifications have approached the needed two thirds of the WTO’s membership

WTO amendments first have to be agreed by consensus. The one on pharmaceutical patents was agreed in Geneva in December 2005, on the eve of a ministerial conference in Hong Kong. The Trade Facilitation Agreement was finally agreed in Geneva on 27 November 2014.

Once agreed, an amendment still has to be ratified (officially, “accepted”), normally by two thirds of WTO members (WTO Agreement article 10.3). (In a handful of cases, mainly for changes to key principles such as non-discrimination, the entire membership  has to ratify — article 10.2.)

It’s only recently that the two amendments’ ratifications have approached the needed two thirds of the WTO’s membership, currently 110 out of 164. The amendment on pharmaceutical patents has taken much longer but finally reached the target on January 23, 2017. The Trade Facilitation Agreement quickly caught up.

Will the amendments apply to everyone?

Ratifying by the time or after the two thirds has been reached amounts to activating the amendment in the ratifying country

No. They will only apply to the countries that have ratified (WTO Agreement article 10.3). Once the two-thirds target is reached, the amendments will still not apply to the countries that have not yet ratified. It will only apply to them when they ratify.

In other words, ratifying by the time or after the two thirds has been reached amounts to activating the amendment in the ratifying country.

Paragraph 3 of WTO Agreement article X (click the image to go to the full text)

For the Trade Facilitation Agreement this seems important. The agreement includes technical assistance for developing countries as a condition when they make some commitments, known as “Category C” commitments.

These are: “Provisions that the member will implement on a date after a transitional period following the entry into force of the agreement and requiring the acquisition of assistance and support for capacity building,” according to this explanation.

For example, Mauritius includes these assistance needs as conditions for its Category C commitments: upgrading information management and staff training for enquiry points; better laboratories, software and staffing for testing products; improving risk assessments; and so on.

A commitment under Category C is, in effect, also a request for technical assistance on that particular item.

Can developing countries that have not ratified the Trade Facilitation Agreement nevertheless make Category C commitments (and therefore make that specific request under the agreement)? Logic would seem to say they cannot. However some countries have submitted Category C (and other) commitments even though they have not ratified. It’s unclear how that works (perhaps someone will clarify).

There is also an awkwardly named Trade Facilitation Agreement Facility, which serves as a lender of last resort if countries cannot find assistance elsewhere.

How the threshold was crossed

Arithmetic dictates that if the EU is only counted as 28 members, then one more non-EU country has to ratify an amendment for the number to reach the needed two thirds

The methods for counting the WTO’s membership are bizarre. They are discussed in more detail here and here.

Trade Facilitation Agreement ratifications reached 112, the final four submitted together, on February 22, 2017.

The situation for the pharmaceutical patent amendment depended on how the EU was counted.

The EU is 29 WTO members: the 28 member states plus the EU itself, and for this amendment the WTO is counting the EU as 29, meaning 107 had ratified by early Januay 2017, and three more were needed. However, for reasons that are unclear, the EU says it should only be counted as 28, meaning 106 had ratified and four more were needed.

The ambiguity was dodged on January 23, 2017 when the WTO announced that five more members had ratified, taking the total to 112 — or 111 if you prefer — in one go. (By then, 83 non-EU members had ratified it.)

Dodged it might have been, but the problem remains. The arithmetic dictates that if the EU is only counted as 28 members instead of 29, then one more WTO member that is not in the EU has to ratify an amendment for the number to reach the needed two thirds.

(Note that after Russia ratified the amendment on September 22, 2017, the WTO website said Russia was the 118th member to ratify. Here the WTO website was using the WTO’s full membership count, with the EU as 29.)

The situation is clearer but unexplained for trade facilitation. A footnote in the agreement says the EU will count as 28 (the same number as its member states). No explanation has been given for this, and so far the EU’s only explanation for counting itself as 28 for the pharmaceutical patent amendment is to cite trade facilitation, even though the Bali deal came six years after the EU ratified the patent amendment.

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Want to know more?

• Trade facilitation (WTO)
• TFA Facility
• Intellectual property and public health (WTO)

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And finally, some really long lists

Pharmaceutical patent amendment

Click the imgage to see it full size. Source: WTO

Who has not yet ratified the pharmaceutical patent amendment?
The amendment won’t apply to any country on this list until it ratifies

1. Afghanistan
2. Angola
3. Antigua and Barbuda
4. Armenia
5. Barbados
6. Burundi
7. Cabo Verde
8. Cameroon
9. Chad
10. Côte d’Ivoire
11. Cuba
12. Congo, Dem Rep
13. Ecuador
14. The Gambia
15. Georgia
16. Ghana
17. Guatemala
18. Guinea
19. Guinea-Bissau
20. Guyana
21. Haiti
22. Jamaica
23. Kazakhstan
24. Kuwait
25. Liberia
26. Maldives
27. Mauritania
28. Mozambique
29. Namibia
30. Nigeria
31. Paraguay
32. Solomon Islands
33. Suriname
34. Swaziland
35. Tonga
36. Tunisia
37. Vanuatu
38. Venezuela
39. Yemen
40. Zimbabwe

Who has ratified the pharmaceutical patent amendment?
(Counting the EU as 29. The WTO’s list is here)

1. United States 17 December 2005
2. Switzerland 13 September 2006
3. El Salvador 19 September 2006
4. Korea, Rep 24 January 2007
5. Norway 5 February 2007
6. India 26 March 2007
7. Philippines 30 March 2007
8. Israel 10 August 2007
9. Japan 31 August 2007
10. Australia 12 September 2007
11. Singapore 28 September 2007
12. Hong Kong, China 27 November 2007
13. China 28 November 2007
14. Austria 30 November 2007
15. Belgium 30 November 2007
16. Bulgaria 30 November 2007
17. Cyprus 30 November 2007
18. Czech Republic 30 November 2007
19. Denmark 30 November 2007
20. Estonia 30 November 2007
21. EUROPEAN UNION 30 November 2007
22. Finland 30 November 2007
23. France 30 November 2007
24. Germany 30 November 2007
25. Greece 30 November 2007
26. Hungary 30 November 2007
27. Ireland 30 November 2007
28. Italy 30 November 2007
29. Latvia 30 November 2007
30. Lithuania 30 November 2007
31. Luxembourg 30 November 2007
32. Malta 30 November 2007
33. Netherlands 30 November 2007
34. Poland 30 November 2007
35. Portugal 30 November 2007
36. Romania 30 November 2007
37. Slovak Republic 30 November 2007
38. Slovenia 30 November 2007
39. Spain 30 November 2007
40. Sweden 30 November 2007
41. United Kingdom 30 November 2007
42. Mauritius 16 April 2008
43. Egypt 18 April 2008
44. Mexico 23 May 2008
45. Jordan 6 August 2008
46. Brazil 13 November 2008
47. Morocco 2 December 2008
48. Albania 28 January 2009
49. Canada 16 June 2009
50. Macao, China 16 June 2009
51. Bahrain 4 August 2009
52. Colombia 7 August 2009
53. Zambia 10 August 2009
54. Nicaragua 25 January 2010
55. Pakistan 8 February 2010
56. Macedonia (FYROM) 16 March 2010
57. Uganda 12 July 2010
58. Mongolia 17 September 2010
59. Croatia 6 December 2010
60. Senegal 18 January 2011
61. Bangladesh 15 March 2011
62. Argentina 20 October 2011
63. Indonesia 20 October 2011
64. New Zealand 21 October 2011
65. Cambodia 1 November 2011
66. Panama 24 November 2011
67. Costa Rica 8 December 2011
68. Rwanda 12 December 2011
69. Honduras 16 December 2011
70. Togo 13 March 2012
71. Saudi Arabia 29 May 2012
72. Chinese Taipei 31 July 2012
73. Dominican Republic 23 May 2013
74. Chile 26 July 2013
75. Montenegro 9 September 2013
76. Trinidad and Tobago 19 September 2013
77. Central African Republic 13 January 2014
78. Turkey 14 May 2014
79. Botswana 18 June 2014
80. Uruguay 31 July 2014
81. Brunei Darussalam 10 April 2015
82. Moldova, Repf 7 July 2015
83. Kenya 21 July 2015
84. Saint Kitts and Nevis 27 July 2015
85. Sri Lanka 9 September 2015
86. Laos 29 September 2015
87. Iceland 12 October 2015
88. Grenada 8 December 2015
89. Malaysia 10 December 2015
90. Myanmar 16 December 2015
91. Lesotho 4 January 2016
92. Mali 20 January 2016
93. Thailand 28 January 2016
94. South Africa 23 February 2016
95. Nepal 11 March 2016
96. Tanzania 14 March 2016
97. Ukraine 16 March 2016
98. Qatar 6 April 2016
99. Samoa 21 April 2016
100. Saint Lucia 2 May 2016
101. Tajikistan 23 May 2016
102. Seychelles 8 June 2016
103. Papua New Guinea 22 June 2016
104. Peru 13 September 2016
105. Belize 15 September 2016
106. Benin 23 November 2016
107. Dominica 28 November 2016
108. Nigeria 16 January 2017
109. Burkina Faso 17 January 2017
110. Liechtenstein 23 January 2017
111. United Arab Emirates 23 January 2017
112. Vietnam 23 January 2017
113. Oman 1 March 2017
114. Sierra Leone 21 March 2017
115. Fiji 1 May 2017
116. St Vincent and the Grenadines 9 May 2017
117. Malawi 24 July 2017
118. Russian Federation 22 September 2017
119. Congo 31 October 2017
120. Madagascar 9 November 2017
121. Gabon 23 November 2017
122. Bolivia 30 January 2018
123. Kyrgyz Republic 6 February 2018
124. Guinea 15 February 2018

Trade facilitation amendment

Click the image to see it full size

Who has not yet ratified the trade facilitation amendment?
(The amendment won’t apply to any country on this list — including provisions on technical assistance — until it ratifies.)

1. Angola
2. Benin
3. Burkina Faso
4. Burundi
5. Cabo Verde
6. Cameroon
7. Colombia
8. Cuba
9. Congo, Democratic Republic
10. Ecuador
11. Egypt
12. Guinea
13. Guinea-Bissau
14. Haiti
15. Kuwait
16. Liberia
17. Maldives
18. Mauritania
19. Morocco
20. Papua New Guinea
21. Solomon Islands
22. Suriname
23. Tajikistan
24. Tanzania
25. Tonga
26. Tunisia
27. Uganda
28. Vanuatu
29. Venezuela
30. Yemen
31. Zimbabwe

Who has ratified the trade facilitation amendment?
(EU represented by its 28 member states. The WTO’s list is here, but the one on the TFA Facility’s pages is kept more up-to-date)

1. Hong Kong, China 8 December 2014
2. Singapore 8 January 2015
3. US 23 January 2015
4. Mauritius 5 March 2015
5. Malaysia 26 May 2015
6. Japan 1 June 2015
7. Australia 8 June 2015
8. Botswana 18 June 2015
9. Trinidad and Tobago 29 July 2015
10. Korea, Republic of 30 July 2015
11. Nicaragua 4 August 2015
12. Niger 6 August 2015
13. Chinese Taipei 17 August 2015
14. Belize 2 September 2015
15. Switzerland 2 September 2015
16. China 4 September 2015
17. Liechtenstein 18 September 2015
18. Laos 29 September 2015
19. New Zealand 29 September 2015
20. Togo 1 October 2015
21. Austria 5 October 2015
22. Belgium 5 October 2015
23. Bulgaria 5 October 2015
24. Croatia 5 October 2015
25. Cyprus 5 October 2015
26. Czech Republic 5 October 2015
27. Denmark 5 October 2015
28. Estonia 5 October 2015
29. Finland 5 October 2015
30. France 5 October 2015
31. Germany 5 October 2015
32. Greece 5 October 2015
33. Hungary 5 October 2015
34. Ireland 5 October 2015
35. Italy 5 October 2015
36. Latvia 5 October 2015
37. Lithuania 5 October 2015
38. Luxembourg 5 October 2015
39. Malta 5 October 2015
40. Netherlands 5 October 2015
41. Poland 5 October 2015
42. Portugal 5 October 2015
43. Romania 5 October 2015
44. Slovak Republic 5 October 2015
45. Slovenia 5 October 2015
46. Spain 5 October 2015
47. Sweden 5 October 2015
48. United Kingdom 5 October 2015
49. Thailand 5 October 2015
50. Macedonia (FYROM) 19 October 2015
51. Pakistan 27 October 2015
52. Panama 17 November 2015
53. Guyana 30 November 2015
54. Côte d‘Ivoire 8 December 2015
55. Grenada 8 December 2015
56. Saint Lucia 8 December 2015
57. Kenya 10 December 2015
58. Brunei Darussalam 15 December 2015
59. Viet Nam 15 December 2015
60. Myanmar 16 December 2015
61. Norway 16 December 2015
62. Ukraine 16 December 2015
63. Zambia 16 December 2015
64. Georgia 4 January 2016
65. Lesotho 4 January 2016
66. Seychelles 11 January 2016
67. Jamaica 19 January 2016
68. Mali 20 January 2016
69. Cambodia 12 February 2016
70. Paraguay 1 March 2016
71. Turkey 16 March 2016
72. Brazil 29 March 2016
73. Macao, China 11 April 2016
74. United Arab Emirates 18 April 2016
75. Samoa 21 April 2016
76. India 22 April 2016
77. Russia 22 April 2016
78. Albania 10 May 2016
79. Montenegro 16 May 2016
80. Kazakhstan 26 May 2016
81. Sri Lanka 31 May 2016
82. Saint Kitts and Nevis 17 June 2016
83. Madagascar 20 June 2016
84. Moldova 24 June 2016
85. El Salvador 4 July 2016
86. Honduras 15 July 2016
87. Mexico 26 July 2016
88. Peru 28 July 2016
89. Saudi Arabia 28 July 2016
90. Afghanistan 29 July 2016
91. Senegal 24 August 2016
92. Uruguay 30 August 2016
93. Bahrain 23 September 2016
94. Bangladesh 27 September 2016
95. Philippines 27 October 2016
96. Iceland 31 October 2016
97. Chile 21 November 2016
98. Swaziland 21 November 2016
99. Dominica 28 November 2016
100. Mongolia 28 November 2016
101. Gabon 5 December 2016
102. Kyrgyz Republic 6 December 2016
103. Canada 16 December 2016
104. Ghana 4 January 2017
105. Mozambique 6 January 2017
106. St Vincent & the Grenadines 9 January 2017
107. Nigeria 16 January 2017
108. Nepal 24 January 2017
109. Chad 22 February 2017
110. Jordan 22 February 2017
111. Oman 22 February 2017
112. Rwanda 22 February 2017
113. Dominican Republic 28 February 2017
114. Guatemala 8 March 2017
115. Armenia 20 March 2017
116. Costa Rica 1 May 2017
117. Fiji 1 May 2017
118. Sierra Leone 5 May 2017
119. Qatar 12 June 2017
120. The Gambia 11 July 2017
121. Malawi 12 July 2017
122. Congo 5 October 2017
123. Antigua and Barbuda 27 November 2017
124. South Africa 30 November 2017
125. Indonesia 5 December 2017
126. Israel 8 December 2017
127. Central African Republic 11 January 2018
128. Argentina 22 January 2018
129. Bolivia 30 January 2018
130. Barbados 31 January 2018
131. Namibia 9 February 2018
132. Djibouti 5 March 2018

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Updates:
• August 24, 2016–March 5, 2018: adding new ratifying countries up to Djibouti in the list of countries accepting the TFA and new ratifying countries up to Guinea for the TRIPS amendment.

• February 22, 2017: some tidying up to make text better reflect both amendments now active
• November 29, 2016: adding screenshot of WTO Agreement art.X.3
• September 13, 2016: deleted remark about the WTO not announcing new ratifications for the TRIPS amendment — on September 13 it did, but only saying that over 63% of members have ratified, without stating how many have ratified and how many more are needed
• August 1, 2016: to correct chart; to clarify that developing countries receive assistance even of they have not ratified; adding links to TFA Facility
• September 30, 2017: adding reference to WTO website counting Russia as 118th member to ratify the patent amendment and implied count of EU as 29

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