BEFORE I BEGIN
I know. This is asking for trouble. Commenting critically on the letter will trigger accusations (again) that I am an “enemy” of the “TRIPS waiver” and happy to see people die from the pandemic. Neither is true.
For those who believe outright that the WTO is evil and that intellectual property protection is its devilish handmaiden, there is no point in reading this. They are immune to complexity and facts. Sadly, too much of the NGO letter adopts that tone.
But if we are interested in looking beyond the rhetoric at what is really happening between countries in the WTO, then the letter misses its target. A few delegations may use it as a weapon in the debate. Others, rather than being persuaded by the letter, will simply dismiss it on the grounds that “they don’t know what they are talking about”, particularly on what the reality is in the WTO.
On one point I agree with the letter: the complaint about reduced facilities for non-governmental organisations at WTO ministerial conferences. The more access they have, the better informed they will be.
(Note this now has a link to David Walker’s November 22, 2021 draft)
By Peter Ungphakorn
POSTED NOVEMBER 23, 2021 | UPDATED NOVEMBER 26, 2021
Two weeks before the World Trade Organization’s Ministerial Conference, over 80 non-governmental organisations wrote to WTO director-general Nogozi Okonjo-Iweala and all WTO members, slamming “sham” work on trade and COVID-19 at the expense of poorer countries.
The letter (full text below) also opposed current moves to reform the way the WTO works, particularly the increased use of negotiations among subsets of the membership when consensus is elusive among the full membership.
The endorsing organisations include some international heavyweights such as Amnesty and Oxfam, alongside a long list of national groups — health, poverty-alleviation and environmental campaigners, labour unions and more.
Their strongly-worded attack lands direct hits on two issues that are important for Okonjo-Iweala herself.
It also misrepresents the way many developing countries see their own interests on these subjects. It has failed to look properly at what is actually going on, what countries themselves have said, and it condemns processes that many developing countries consider to be essential.
For a start, since taking office in March, Okonjo-Iweala’s top priority has been a comprehensive approach to trade and the pandemic, part of what the non-governmental organisations (NGOs) call a “sham”. How much work has now been done on this can be seen here. Before joining the WTO, Okonjo-Iweala chaired the board of GAVI, the vaccine alliance.
She has also highlighted using talks among only part of the membership (“plurilaterals”) as a way of “invigorating” WTO negotiations. This is the other target of attack in the letter.
Both of these are going to feature heavily in the November 30–December 3 Ministerial Conference, with support from both developed and developing countries.
Since the letter is so ill-informed why bother to comment on it at all? Shouldn’t it be left, ignored, by the wayside? Perhaps. But there are some big names on the letter, and it has gained some traction.
A lot of it is so over-the-top that it’s not even worth discussing. “The WTO’s vaccine apartheid” is absurd. But it’s eye-catching and it’s been echoed on social media.
The letter claims to be supporting developing countries. Some of them do agree with some parts of it. But in many cases large numbers of developing countries — including least developed countries — are saying the exact opposite of a lot of the letter. We only have to read minutes from WTO meetings to see.
What does the letter say? And what has really been happening?
Continue reading or jump to:
First mistakes: false comparison | The Walker consultations (1): ‘scandalous’ appointment | The Walker consultations (2): ‘sham’ content | The Sørli talks: ‘agree immediately’ | WTO reform: ‘undermining core fundamentals’ | The letter
First mistakes: false comparison
On trade and the pandemic, there are two lines of work in the WTO.
The letter’s first mistake is to see the two as “either/or”, to disregard the possibility that both can be done at the same time, which is what most WTO members want, both rich and poor.
Its second mistake is to treat the two as equals, and to claim that one is being undertaken at the expense of the other, that one of them is biased in favour of rich countries and corporations, and against poorer countries.
What are the two lines of work? One is an exercise in gathering facts and countries’ opinions on trade and the pandemic. It is done for the WTO General Council, and it is a priority driven by members and Director-General Okonjo-Iweala alike.
The other, slightly older activity is a negotiation to set up a “TRIPS waiver”. This would waive countries’ obligations to protect some areas of intellectual property temporarily for medicines and other products in order to deal with COVID-19 better and more fairly. It takes place in the TRIPS Council.
(TRIPS is the WTO acronym for “trade-related aspects of intellectual property rights”, also the name of the its intellectual property agreement. This organigram shows the relationship between the General Council and the TRIPS Council.)
The two lines of work are entirely different in nature. One is about gathering information and compiling it into a report. That is a relatively straightforward fact-finding exercise, although there is some debate about what should be said on intellectual property.
Where the members agree, that could be reported as a recommendation. Disagreement could also be reported.
The other (the waiver) is about rule-making. It would alter countries’ legal rights and obligations under the WTO intellectual property agreement — some of those rights and obligations would be waived. That is a big deal.
The key point to make here — which the letter misses — is that we should not be surprised when renegotiating rules is much more controversial and difficult than compiling a report.
The Walker consultations (1): ‘scandalous’ appointment
That first task is coordinated by New Zealander David Walker, one of the most experienced WTO ambassadors currently in Geneva, having previously chaired the General Council, Dispute Settlement Body and agriculture negotiations.
Walker was appointed on June 22 this year by the present General Council chair, Honduras ambassador Dacio Castillo. He is officially a “facilitator for the WTO response to the pandemic”.
The NGOs’ letter calls the appointment “scandalous” and “unilateral”. Those strong words are not backed up by any evidence.
There are two points to observe about the appointment.
First, picking someone to help a chair work with members on a particular subject is commonplace. In present WTO deliberations it has happened on fisheries subsidies, agriculture, services and more.
Appointments like this are never made without consulting the members, but those consultations are never public. The appointment of a former General Council chair to perform an important task like this is more or less routine.
Second, if the NGOs had bothered to read the General Council’s minutes (section 8, pages 53–74, from the July meeting) they would have seen that not one delegation objected to Walker’s appointment — from Afghanistan to Zimbabwe and anywhere in between.
The letter’s accusation that the appointment was “scandalous” simply shows ignorance of how the WTO operates.
The Walker consultations (2): ‘sham’ content
Worse, the letter calls Walker’s work a “sham”.
“The reality is that the Walker process is a deplorable attempt by the WTO to cover up what should be a grave humiliation: its inability to agree to remove key obstacles to resolving the COVID-19 pandemic by waiving intellectual property barriers as per the TRIPS waiver proposal. Millions of people have died because of the WTO’s vaccine apartheid and inequitable access.”
Far from covering anything up, Walker’s consultations are designed to examine trade issues that most members consider to be important for dealing with the pandemic.
That includes developing countries, which generally support his efforts. In the July meeting they included: Vietnam, Jamaica, China, the least-developed countries’ group (currently 35 WTO members), Côte d’Ivoire, Chile, Colombia, Argentina, Paraguay, Costa Rica, South Africa (pars 8.109 to 8.115), Mongolia, Saudi Arabia, Pakistan and Bangladesh.
Several who did not mention Walker specifically, nevertheless referred to subjects that he covers, such as removing obstacles to trade in medical products and their supply chains.
Unsurprisingly the developing countries did not all say the same thing. Some wanted to see barriers removed from exports and supply chains; others said they needed to be able to restrict exports and control supply.
And that is exactly the purpose of the Walker exercise — to compile the range of positions, look for shared positions and propose how to deal with differences. In that July General Council meeting he described in detail his approach (section 7.1, pages 50–52)
Walker pointed out much of his task was already underway in the WTO, for example an unofficial compilation of issues from the ambassadors of Jamaica and Singapore. And he suggested starting by focusing on:
“… (i) export restrictions; (ii) trade facilitation, regulatory coherence, cooperation and tariffs; (iii) the role of services; (iv) transparency and monitoring; (v) collaboration with other organizations and engagement with key stakeholders; and (vi) the idea of a framework to respond more effectively to future pandemics and crises. This is not necessarily an exhaustive list of themes, but I think it would usefully kick-off the thematic discussion.”
The only possible explanation for the NGO letter’s criticism is not the content of that list, but the fact that it does not include intellectual property (IP). Why? To avoid duplication.
“I proposed leaving IP and IP related aspects aside from this process for now, as the Chairman of the TRIPS Council will be reporting on these aspects to the General Council.”
Three papers from the members themselves show that developing countries are active in these discussions:
- a draft General Council declaration on “COVID-19 and beyond: trade and health”. The current sponsors are: Australia, Bahrain, Brazil, Brunei, Canada, Chile, China, Costa Rica, EU, Hong Kong, Iceland, Japan, Kazakhstan, Kenya, Rep. of Korea, Mexico, Moldova, Montenegro, New Zealand, North Macedonia, Norway, Philippines, Saudi Arabia, Singapore, Switzerland, Taiwan, UK, Uruguay and Vanuatu. The draft covers export restrictions, customs, services, technical regulations, tariffs, transparency and review of trade measures, and expanding production
- a paper from Colombia, Costa Rica, Dominican Republic, Ecuador, Panama and Paraguay on “Trade restrictions that hamper equitable access to COVID-19 vaccines”, dealing with export restrictions, cutting red tape at the border, freedom of movement of health personnel, harmonising standards for relevant medical products, and transparency
- a secret (“restricted”) paper from Egypt, Pakistan, South Africa, Sri Lanka, Tunisia, Uganda and Venezuela on “WTO response in light of the pandemic: trade rules that support resilience building, response and recovery to face domestic and global crises.”
In other words, the letter is absolutely wrong in its claim that the Walker discussion is only about the interests of rich countries and big companies, and that developing countries are being swept aside.
What we can see is that many developing countries are fully engaged in the process.
What we could not see when the letter was issued was how that would translate into a Walker text.
The text was circulated on November 22, included in a report to the General Council, and is confidential (“restricted”). It can now be seen here (pdf, 9 pages), and should be public at the Ministerial Conference. In any case it should eventually be in the General Council minutes.
The report is long, but worth reading to understand what has been going on.
In the first three pages, Walker reports on what he has done so far, the meetings he has held, delegations’ widely differing views, and how he has tried to draw this into his drafting.
The next four pages are a draft ministerial declaration, which Walker says is his attempt to draw on shared positions among the membership.
In the final two pages is a proposed “Action Plan on Pandemic Response, Preparedness and Resilience” for after the Ministerial Conference. Walker says:
“Certain specific issues did not appear ready for political commitments at the Ministerial Conference, but should form part of a structured plan of work after the Ministerial. Overall, keeping a balance between a credible political declaration for MC12 [the Ministerial Conference] and a robust post-MC12 Action Plan is key to a document that will be acceptable to all.”
So far, the main dissatisfaction with the report seems to be where the “placeholder” on the waiver is located. Walker put it in the preamble of the draft declaration. Some members said it should be in the main part of the declaration, WTO spokesman Keith Rockwell said, when he briefed journalists on the November 22–23 General Council meeting.
(UPDATE: more discontent emerged at a meeting on November 26, just before the Ministerial Conference was postponed, but no one rejected the Walker talks themselves)
The Sørli talks: ‘agree immediately’
In the July General Council meeting, when Walker stated that he would not deal with intellectual property and the proposed TRIPS waiver, no one objected, contrary to the impression given by the NGOs’ letter.
The reason is straightforward. The TRIPS waiver had already been discussed for almost a year in the intellectual property (TRIPS) council, chaired by Norway’s ambassador Dagfinn Sørli. (Interestingly, while the NGOs’ letter is brutal on Walker, it does not mention Sørli at all.)
It made no sense for Walker to duplicate that work, or for the subject to be removed from the TRIPS Council.
However, some members are demanding that Walker’s report must at least mention their concern about intellectual property.
Meanwhile, in the TRIPS Council, the members are still deadlocked over the waiver.
This is not just about whether to have a waiver, yes or no.
It’s about what the waiver should say. How long should it last? Should it only cover patents, or also some other types of intellectual property? Should it only be for vaccines, or also other products involved in testing and treating COVID-19? What about trade secrets? What additional terms and conditions should apply?
Those are serious and complicated questions. Demanding immediate agreement, as the letter does, means dismissing the debate as irrelevant.
The letter’s verdict is a blanket condemnation:
“The WTO’s response to the pandemic, thus, must be understood as attempting to ensure that the global pandemic not interfere with corporate desires to maintain profits even at the expense of lives and livelihoods globally.”
“The WTO” is its members, not an entity that is autonomous from its members. The letter has attributed a single sinister motive to the entire membership.
However, the real practical question that the NGO letter raises is this. If there is no consensus on the waiver, should WTO members ditch all the other work on trade and the pandemic until the deadlock is broken?
Should they stop talking about export restrictions, cutting red tape at the border, freedom of movement of health personnel, harmonising standards for medical products, and transparency? Are corporations the only beneficiaries of reform in those areas?
The letter says:
“We urgently call on WTO members to engage in a course correction: to agree immediately to the TRIPS waiver as proposed; to halt the sham Walker process.”
Developing countries’ genuine concerns deserve better than that.
WTO reform: ‘undermining core fundamentals’
The second half of the letter objects to the proposal to set up a working group for members to discuss “WTO reform”.
It doesn’t really matter where they do the talking, whether in the General Council, or in a sub-committee or working group. Any of those will be open to all members anyway.
The letter’s real target is the “plurilateral” negotiations among only part of the membership. It echoes the arguments raised by India and South Africa in February, that plurilateral talks undermine the multilateral nature of the WTO.
But India and South Africa are in a minority even among developing countries. The vast majority of WTO members (147 out of 164) are involved in at least one of the five subjects being negotiated plurilaterally, and only 17 are not:
- electronic commerce and digital trade (86 members)
- domestic regulation in services (67)
- investment facilitation for development (100)
- micro, small and medium-sized enterprises (98 or 90, depending on how they are counted)
- gender equality and women in trade (115).
(The figures are correct at the time of writing.
Updates, details and sources for all these numbers are in this technical note.)
The General Council’s minutes also show dwindling support for India’s and South Africa’s objections. In the General Council on November 22–23, the only countries sharing their view were Namibia, Pakistan, Tunisia and Nepal, according to spokesman Rockwell. (Namibia participates in one plurilateral, and Pakistan in three.)
For a growing number of WTO members, if multilateral talks are deadlocked because consensus is elusive, then the solution is to negotiate among a smaller group of the willing. In a few cases there might be legal issues to sort out, but not with most subjects being discussed.
Plurilaterals are unavoidably going to be at the heart of many ministers’ discussions on reforming the WTO’s negotiating function.
Worse, the letter overlooks completely the area of “WTO reform” that many consider to be needed most urgently: dispute settlement, where appeals can no longer be heard. The US has said it wants to talk about this. The EU has proposed doing it in a working group on all aspects of WTO reform.
Do the 86 NGOs really believe a well-functioning dispute settlement system is irrelevant to the interests of developing countries?
Finally, the letter attacks how preparations for the Ministerial Conference are being organised. It objects to the fact that some initial work is undertaken in smaller group meetings.
This is a big subject, but the criticism is weak because it fails to address the real problem when trying and failing to do everything in meetings of the full membership (more here). Small group meetings are used regularly in a range of WTO activities, including the negotiations on the TRIPS waiver (see for example paragraph 4 of these minutes).
The letter might be welcomed by activists who know little about the WTO and are predisposed to hate it. Some delegations may pick it up to support their arguments in the WTO.
For the rest of its supposed target — WTO members and Okonjo-Iweala — they may struggle to take it seriously.
The letter
The full text including the list of endorsing organisations is here (html) and here (pdf)
Open letter to WTO Director-General and all WTO Members
19 November 2021
Dear Director-General Ngozi Okonjo-Iweala and all WTO Members,
We are writing with great urgency regarding the abrogation of process leading up to the 12th Ministerial Conference of the WTO (MC12), and to reinforce that the absence of a meaningful outcome on TRIPS Waiver means that the WTO has failed to mount the required response to the ongoing COVID-19 pandemic that continues to devastate countries socially and economically.
Intellectual property rules — enforced by the WTO’s Trade-Related Intellectual Property Rights (TRIPS) agreement — are key barriers to containing the COVID-19 pandemic. They confer monopolies, hinder the freedom to operate, and the scaling up of production, directly contributing to inequitable access around the world but especially in developing and least developed countries.
The TRIPS Waiver proposal (IP/C/W/669/Rev.1) was submitted in October 2020 and since has been supported by the majority of WTO Members, international organizations (e.g. the WHO, UNAIDS, UNITAID, UNCTAD), world leaders, faith leaders, civil society, parliamentarians and trade unions. This proposal which calls for a waiver from certain provisions of the WTO-TRIPS Agreement (with respect to patents, protection of undisclosed information, copyright and industrial designs) is globally viewed as being central to any effective WTO response to COVID-19 and to achieving equitable access.
Despite the significance of the TRIPS Waiver proposal, and after more than one year of intense discussion there does not seem to be much progress towards a meaningful outcome. Instead, scandalously the General Council Chair Dacio Castillo unilaterally selected Ambassador Walker of New Zealand to chair discussions on a declaration titled “WTO response to the COVID-19 pandemic”. Ambassador Walker also unilaterally tabled a proposed text which is clearly not designed to resolve the pandemic. Rather, the draft text promotes the same liberalization demands made by developed countries in various fora and interventions that will further constrain regulatory space and policy tools available to WTO Members, while further entrenching corporate influence in the institution, drastically undermining the Member-driven character of WTO as mandated in the Marrakesh Agreement.
Walker’s text also calls on WTO Members to establish a “Work Plan on Pandemic Preparedness and Resilience” that will carry the work post MC12 on the WTO response to the COVID-19 pandemic and potentially other future crises. However, the main intent of this work-plan appears to be to push the liberalization and deregulatory interests of developed countries and undermine existing mandates including the Doha mandate of 2001, which has multiple issues of interest to developing countries that were never delivered. Notably, the Walker process specifically excludes discussion on the most important topic: the TRIPS waiver.
The reality is that the Walker process is a deplorable attempt by the WTO to cover up what should be a grave humiliation: its inability to agree to remove key obstacles to resolving the COVID-19 pandemic by waiving intellectual property barriers as per the TRIPS waiver proposal. Millions of people have died because of the WTO’s vaccine apartheid and inequitable access.
The WTO’s response to the pandemic, thus, must be understood as attempting to ensure that the global pandemic not interfere with corporate desires to maintain profits even at the expense of lives and livelihoods globally. Instead, we call on governments and the WTO to ensure that trade rules do not hinder the global effort to end the pandemic and achieve global public health.
Another process we are concerned about is the push for establishing a new working group on WTO reform. Developing countries and many civil society campaigns have long called for reform of the multilateral trading system in favor of developing countries and large vulnerable constituencies such as small farmers, producers, workers, patient groups and indigenous peoples. However, it is clear from their propositions that developed countries are attempting to undermine the core fundamentals of the WTO’s mandate as a multilateral institution and alter decision-making procedures. Instead, they wish to normalize the “Joint Statement Initiatives (JSIs)” launched at the Buenos Aires Ministerial and henceforward, which will undermine the multilateral nature of the organization and its ability to deliver anything useful for developing countries and LDCs. They also attack developing country self-designation, a key legal principle of the WTO, thus eventually limiting the availability of special and differential treatment to many developing countries and LDCs. The reform narrative is also being utilized by some developed countries to inject into the WTO agenda issues that will further constrain the policy tools available to developing countries and open up more space for big business to influence the WTO agenda.
We are gravely concerned with the further marginalization of existing multilateral mandates for negotiations, such as the overdue Doha Development mandate, in particular to strengthen special and differential treatment flexibilities and make them more precise, effective and operational; deliver an expedited solution on cotton; and public stockholding for food security purposes, amongst other mandated issues. These attempts seem to seek to further entrench the WTO as a power-based rather than rules-based organization.
Different preparatory processes towards MC12 are being convened in a way that excludes the vast majority of WTO Members, while over-privileging the participation of developed country members. Exclusionary “Green Room” processes should be anathema to WTO Members and must be eliminated.
In addition, for the first time at a Ministerial Conference, the WTO Secretariat is drastically restricting the very minimal access that is allowed to civil society organizations (CSOs) and has even gone so far as to abolish the very tiny provision of facilities at the NGO center.
We urgently call on WTO Members to engage in a course correction: to agree immediately to the TRIPS waiver as proposed; to halt the sham Walker process’ on further liberalization and imposition of regulatory constraints and instead focus on real solutions; to focus WTO reform efforts on removing barriers to development; to halt all “Green Room” processes; to ensure full access to participation by all WTO Members to all negotiations; and to restore at least the very minimum levels of participation of civil society to the Ministerial Conference.
Endorses as of November 19, 2021:
International and regional networks: (86 organisations listed here)
Updates:
November 26, 2021 — adding the link to the meeting on November 26, mentioning th;t the Ministerial Conference has been postponed; confirming the title and list of sponsors of the paper by Egypt and others
November 25, 2021 — adding the Walker draft from November 22
November 23–25, 2021 — adding and correcting details of countries participating in plurilaterals and those speaking against them in the General Council; some text edits
Image credits:
Letters | Pexels licence
Ngozi Okonjo-Iweala, David Walker, Dagfinn Sørli | WTO
Patch | Luis Villasmil, Unsplash licence
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