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

The race has been won, and we now have the first two amendments to the World Trade Organization agreements to take effect since the organisation was set up in 1995. The winner was on access to medicines. A month later, the rival followed — on cutting red tape at the border

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By Peter Ungphakorn
POSTED JULY 31, 2016 | UPDATED DECEMBER 11, 2017

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.

Chart updated 11.12.2017
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?Back to top

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?Back to top

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.

GATT Art.10.3 on acceptances
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 crossedBack to top

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.


Want to know more?


And finally, some really long lists

Pharmaceutical patent amendmentBack to top

Map of Par.6 acceptances
Click the imgage to see it full size. Source: WTO

Who has not yet ratified the pharmaceutical patent amendment?Back to top
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. Bolivia
  7. Burundi
  8. Cabo Verde
  9. Cameroon
  10. Chad
  11. Côte d’Ivoire
  12. Cuba
  13. Congo, Dem Rep
  14. Djibouti
  15. Ecuador
  16. The Gambia
  17. Georgia
  18. Ghana
  19. Guatemala
  20. Guinea
  21. Guinea-Bissau
  22. Guyana
  23. Haiti
  24. Jamaica
  25. Kazakhstan
  26. Kuwait
  27. Kyrgyz Republic
  28. Liberia
  29. Maldives
  30. Mauritania
  31. Mozambique
  32. Namibia
  33. Nigeria
  34. Paraguay
  35. Solomon Islands
  36. Suriname
  37. Swaziland
  38. Tonga
  39. Tunisia
  40. Vanuatu
  41. Venezuela
  42. Yemen
  43. Zimbabwe


Who has ratified the pharmaceutical patent amendment?Back to top
(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

Trade facilitation amendmentBack to top

Map updated 11.12.2017
Click the image to see it full size Map updated 11.12.2017 Map of TFA acceptances

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

Who has ratified the trade facilitation amendment?Back to top
(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


Updates:
• August 24, 2016–December 11, 2017: adding new ratifying countries up to Israel to list of countries accepting TFA and new ratifying countries up to Gabon for 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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Author: tradebetablog

I used to work on trade issues and am now retired. I am an occasional freelance journalist, focusing mainly on international trade rules, agreements and institutions, with periodic analyses for AgraEurope www.agra-net.com/agra/agra-europe. This blog is for trialling ideas on trade and any other subject, hence “β”. You can respond by using the contact form or tweeting @CoppetainPU — Copyright © Peter Ungphakorn except where stated