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TWN
Info Service on Sustainable Agriculture
WTO: US turns upside down MC12 decision on TRIPS, fisheries
& mandate Geneva, 26 Jul (D. Ravi Kanth) -- The much-touted "ministerial decision on the TRIPS Agreement" of the WTO's 12th ministerial conference (MC12) faced headwinds on 26 July, after the United States apparently declared that paragraph eight to decide on its extension to cover the production and supply of COVID-19 diagnostics and therapeutics "no later than six months" from the date of the decision, is only a deadline for discussions and is not a mandate, said people familiar with the development. On the second day of the General Council (GC) meeting on 26 July, the US took the floor at the very beginning of the meeting to drive home the message that paragraph eight of the ministerial decision on the TRIPS Agreement is not a mandate but only a decision to continue the discussions, said people, who asked not to be quoted. According to the ministerial decision (WT/MIN (22)/30), paragraph eight states, "no later than six months from the date of this Decision, Members will decide on its extension to cover the production and supply of COVID-19 diagnostics and therapeutics." The moot question is if paragraph eight of the ministerial decision on the TRIPS Agreement is not part of the mandate, then the whole agreement would collapse because it is legally inconsistent to adopt, said a person, who asked not to be quoted. Earlier, at the GC meeting on 25 July, several co-sponsors of the TRIPS waiver proposal (IP/C/W/669/Rev.1) called for a discussion on paragraph eight of the ministerial decision. On behalf of the 65 co-sponsors of the revised TRIPS waiver proposal, South Africa, India, Indonesia, Egypt, Pakistan, and Argentina called for discussing the issue. As reported in SUNS #9612 dated 8 July 2022, several countries such as South Africa, India, Indonesia, Egypt, Pakistan, and Tanzania on behalf of the African Group, presented a three-page proposal highlighting that as of December 2021, of the more than 3 billion tests reported across the world, only 0.4% had been performed in low- income countries. In a restricted unofficial WTO room document (RD/IP/49) dated 6 July, they pointed out that the expansion of local production to a broader range of geographical locations is the only way to sustainably address this over- reliance. Further, they argued that, "patents on Cas enzymes used in CRISPR-based diagnostic tests and recently expired foundational patents on lateral flow rapid diagnostic tests and polymerase chain reaction (PCR) have inhibited expansion of production to LMICs." It is also well known that "access to lifesaving tools, including diagnostic tests, therapeutics, and vaccines, remains concentrated in higher-income countries while many low- and middle-income countries still lag behind." Against this backdrop, the co-sponsors concluded that "extension of the policy tools provided in WT/MIN(22)/30 to therapeutics and diagnostics will help developing countries to address IP barriers to the expansion and diversification of production. This will increase the accessibility of these crucial life-saving COVID-19 tools." "People's access to important COVID-19 treatments and diagnostics remains challenging in many developing countries due in part to IP barriers and restrictive licensing by pharmaceutical corporations and this must be addressed as soon as possible," they said. They proposed the following schedule of meetings: "The proposed indicative schedule of meetings below is aimed at assisting Members to reach the mandated Decision within the deadline set by Ministers. Formal meeting of the TRIPS Council, 6-7 July 2022 1. Preliminary discussions on the paragraph 8 mandate. Late July 2022 2. Continuation of discussions on the extension of the decision to diagnostics and therapeutics. General Council of 25-26 July 3. TRIPS Council to report to the General Council on progress made in the discussions on the paragraph 8 Ministerial mandate. Early and end September 2022 4. Continuation of discussions on the extension of the decision to diagnostics and therapeutics. Formal TRIPS Council meeting, October 2022 5. The October TRIPS Council meeting should take stock of the discussions to date. November-December 2022 6. During this month, Members must conclude discussion to extend the decision to therapeutics and diagnostics. 7. The Decision is to be taken in the General Council." Yet, the US seems to have struck a body blow to the MC12 decision, said a participant, who asked not to be quoted. It remains to be seen what the WTO Director-General, Ms Ngozi Okonjo-Iweala, will have to say on the US position at the GC meeting on 26 July, said people, who asked not to be quoted. US ALSO TURNS THE TABLES ON OTHER ISSUES Several developing countries such as India, Nepal, Indonesia, and South Africa among others have firmly pushed back against the US suggestion to drop "the implementation of the Bali, Nairobi and Buenos Aires outcomes" from the General Council agenda, saying that they must be retained to know the progress or lack of it on the pending issues, said people familiar with the development. At the General Council meeting on 25 July, the US also apparently suggested that agreeing to work on the list of decisions/declarations adopted at MC12 is not a mandate, adding that members have to work beyond the MC12 outcomes on other issues, said people, who asked not to be quoted. The US trade envoy Ambassador Maria Pagan appears to have "fired bombshells" at the meeting by suggesting that the Fisheries Subsidies Agreement needs to undergo a thorough "legal scrubbing" for it to be adopted, said people who took part in the meeting. On a proposal by Brazil and Australia to convene annual ministerial meetings on the lines of what is done at the Paris-based Organization for Economic Cooperation and Development (OECD), the US apparently dismissed the suggestion on grounds that convening such meetings without any purpose will not serve the members well, said people, who asked not to be quoted. Further, the US apparently sought to know why a ministerial meeting is needed, raising questions whether it is meant for a stocktaking or for a way forward. The points raised by the US seemed like a setback to the claims made about the "success" of MC12 in which the decisions/declarations seemed more like "kicking the can down the road", said people, who took part in the meeting. Further, the US also asked the General Council chair Ambassador Didier Chambovey from Switzerland to remove the "implementation of the Bali, Nairobi and Buenos Aires outcomes" from the GC agenda, which was questioned by several developing countries like India, Nepal, Indonesia, Nigeria, and South Africa among others. DROPPING BALI, NAIROBI & BUENOS AIRES OUTCOMES FROM GC AGENDA? At the GC meeting on 25 July, the General Council chair Ambassador Chambovey provided a detailed account of the decisions taken on the implementation of the Bali, Nairobi, and Buenos Aires outcomes, the e-commerce moratorium, the moratorium on TRIPS non-violation and situation complaints, and a package of issues concerning the least-developed countries (LDCs). Immediately after the presentation of his report, the GC chair opened the floor for discussions. The US was the first to raise its flag on agenda item three concerning the implementation of the Bali, Nairobi, and Buenos Aires outcomes. The US urged the chair to drop the item from the agenda, suggesting that if there are any specific issues, members can bring it to the GC, said people familiar with the discussions. In strong statements delivered at the General Council meeting, India, Indonesia, and South Africa, in their separate interventions in response to the US suggestion, said that the item on the implementation of the Bali, Nairobi, and Buenos Aires outcomes must remain on the agenda as it provides a snapshot on whether the ministerial mandates on mandated issues like the permanent solution for public stockholding (PSH) programs for food security and the special safeguard mechanism for developing countries are implemented or not, said people, who took part in the meeting. India said that it would like this item on the agenda to remain on the table for the GC to continuously review the progress or lack of it on the mandated issues like the permanent solution for public stockholding programs for food security and the special safeguard mechanism for developing countries. India said it wants to know what are the pending items from the previous mandates, emphasizing that the permanent solution on PSH programs has been part of the mandated issues, said people familiar with India's statement. India said PSH is one of the solutions to address food security and not the only solution, adding that it never said it is the only solution. India said the PSH programs have helped 1.4 billion people as well as providing food aid to other countries, "where free trade has not helped". India said there will be no progress in the discussions on agriculture reform unless the PSH issue is resolved on a war footing, said people, who asked not to be quoted. "LEGAL SCRUBBING" OF FISHERIES SUBSIDIES AGREEMENT? After the US seemingly pronounced that the Fisheries Subsidies Agreement needed "legal scrubbing", there was confusion as to whether the accompanying protocol to submit the instrument on the partial Fisheries Subsidies Agreement can be adopted, said a person, who asked not to be quoted. In sharp contrast to the US position on the issue of "legal scrubbing" of the Fisheries Subsidies Agreement, Australia and the European Union among others apparently suggested that the Fisheries Subsidies Agreement would not need "legal scrubbing". They pointed out that it is ready to be approved by countries, a statement that was also shared by the chair of the Doha fisheries subsidies negotiations, Ambassador Santiago Wills of Colombia. Subsequently, the General Council meeting witnessed contrasting views on how to proceed on the Fisheries Subsidies Agreement. The GC meeting witnessed contrasting interventions following the US positions on continuing the discussion on all issues, discussing new issues, and the "legal scrubbing" of the Fisheries Subsidies Agreement before its adoption, said people familiar with the development. DG'S "UPBEAT" ASSESSMENT The DG, Ms Okonjo-Iweala, in her capacity as the chair of the Trade Negotiations Committee (TNC), delivered a rather upbeat report on the unprecedented package of outcomes reached at MC12. She said "we need to use this support and momentum by continuing our efforts to revitalize or reinvigorate all of the WTO core functions so that we can remain fit for purpose in a changing global economy and continue to deliver more for the people around the world." Commenting on the Fisheries Subsidies Agreement, she said "the urgent situation on the oceans and our fisheries makes it imperative to get this done as soon as possible," adding that "this means that each member has to take action in accordance with its own system to formally accept the agreement and deposit its instrument of acceptance with the WTO secretariat." In the face of the US suggestion that the Fisheries Subsidies Agreement has to be "legally scrubbed", the DG called on the chair of the fisheries subsidies negotiations, Ambassador Wills from Colombia, to clarify the issue. Ambassador Wills suggested that what is being done right now with the Fisheries Subsidies Agreement is on the lines of what was done on the TRIPS waiver in the past and the Trade Facilitation Agreement. He added that some countries are already ready to deposit their instruments of acceptance. Speaking on the necessary WTO reforms, the DG reiterated "the need to develop common understanding about what reform is, build on that and act with a sense of urgency, including resolving the Appellate Body issue, a matter that many leaders have raised." In his opening statement, the GC chair Ambassador Chambovey said members should do what it takes to sustain the momentum. He emphasized that "I, therefore, would like to encourage relevant WTO bodies to establish work plans - where feasible - based on MC12 mandates that could serve as yet another useful tool in our implementation pursuit." He said that the United Arab Emirates and Cameroon have offered to host MC13 in 2024. The European Union expressed sharp concern over the reneging by Russia of the recent agreement reached between Ukraine, Turkey, and Russia for starting the process of exports of wheat and sunflower oil from the Black Sea region. The EU said that even before the ink dried on this agreement, Russia has violated the accord by bombing the port of Odessa. DEVELOPING COUNTRIES RAISE CONCERNS Pakistan said that there is confusion about the GC meeting, which is normally preceded by a meeting of the Trade Negotiations Committee (TNC). Pakistan expressed dismay as to why the TNC, which was established under the Doha mandate, was not convened before the GC meeting. Responding to Pakistan's concern, the DG said that since there were no active negotiations during the recent weeks, she did not convene the TNC meeting. The DG also clarified about the fact-sheet that was issued on the MC12 decisions/declarations, suggesting that it was just an attempt to help members. The DG also touched on the recurring observations that MC12 lacked transparency and inclusivity, dismissing the claims that two-thirds of members were excluded from the process. India asked for data from the World Food Programme (WFP) on its procurement from countries since the MC12 decision to remove restrictions on the food purchases made by the WFP. India said the data would indicate the impact of the MC12 decision, or lack of it. In short, some of the key decisions coming out of MC12 such as the ministerial decision on the TRIPS Agreement, and the agreement on fisheries subsidies among others seem to be turned upside down because of the intransigent positions adopted by the US, said several people who asked not to be quoted. +
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