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TWN Info
Service on WTO and Trade Issues (Jan22/05) Geneva, 14 Jan (D. Ravi Kanth) – Switzerland is planning to convene a virtual mini-ministerial meeting on 21 January to discuss what members of the World Trade Organization can do to deliver on the possible outcomes this year as well as on the WTO’s future work program, said people familiar with the development. The virtual meeting, to be held in lieu of the annual meeting of the World Economic Forum in Davos, is taking place against the backdrop of the rapidly spreading Omicron variant of the SARS-CoV-2 virus that is expected to adversely affect global economic recovery. It remains unclear whether the TRIPS waiver issue will be addressed at the meeting, said people who asked not to be quoted. The temporary TRIPS waiver, co-sponsored by 64 WTO members, seeks to suspend certain provisions in the TRIPS Agreement relating to copyrights, industrial designs, patents, and protection of undisclosed information to ramp up global production of diagnostics, therapeutics, and vaccines to combat the COVID-19 pandemic. SWITZERLAND OPPOSES TRIPS WAIVER Switzerland along with the European Union, the United Kingdom, and several other members of the Ottawa Group of countries led by Canada have continued to block an urgent resolution of the TRIPS waiver issue on one ground or the other. They also blocked India’s request for an urgent virtual ministerial meeting on the TRIPS waiver at a special meeting of the WTO General Council (GC) on 10 January (see SUNS #9490 dated 12 January 2022). However, the same countries have intensified their campaign on fisheries subsidies, and on proposed WTO reforms even though this remains a non-mandated issue, said people familiar with the development. The EU and Brazil appear determined to link an outcome on fisheries subsidies to the WTO’s response to the pandemic involving the TRIPS dimension. The WTO director-general Ms Ngozi Okonjo-Iweala has also echoed their demand during the special GC meeting on 10 January. She said at the GC meeting that “while pandemic response remained the most urgent endeavour facing WTO members, not least given the specter of even newer coronavirus variants, many members had reached out to her to emphasize the importance of other items on the WTO agenda, including fisheries subsidies, agriculture and WTO reform.” She went on to say that these remained priority areas for outcomes, and expressed hope “that we can all agree on getting results as soon as possible.” In their letter to trade ministers on 7 December last year, the WTO General Council chair, Ambassador Dacio Castillo from Honduras, and the DG had emphasized that members “have to act now, devising new ways of working so as to achieve meaningful multilateral outcomes.” They said that the “new Omicron variant has reminded us once again of the urgency of converging on a WTO response to the pandemic, including the TRIPS dimension” right now. They said “our aim is to conclude deals, or at least resolve brackets and clean up texts to the full extent possible.” FISHERIES SUBSIDIES NEGOTIATIONS Meanwhile, the chair of the Doha fisheries subsidies negotiations, Ambassador Santiago Wills from Colombia, is planning to commence negotiations on 17 January to “address issues related to territoriality and non-specific fuel subsidies.” The issue of territoriality is dealt with in Article 11.2 (B) of the draft text on fisheries subsidies that he had issued on 24 November 2021. It states: [A panel established pursuant to Article 10 of this Agreement shall not entertain any claim that would require it to address any issues of territorial claims or delimitation of maritime boundaries that is contested by a party or a third party.] As regards non-specific fuel subsidies, it constitutes one of the biggest components of the fisheries subsidies provided by the EU, the US and other industrialized countries, as well as China. India raised the issue concerning fuel subsidies during the fisheries subsidies negotiations over the last two years. The chair has included Articles 1.2 and 8.1bis in the draft text dealing with the issue of territoriality. In addition to the specific subsidies in Article 1.1 of the draft fisheries subsidies agreement, the Indian proposal concerning non-specific fuel subsidies is included in Article 1.2 of the draft agreement. It states: [Notwithstanding paragraph 1 of this Article, this Agreement also applies to fuel subsidies to fishing and fishing related activities at sea that are not specific within the meaning of Article 2 of the SCM Agreement.] In a similar vein, non-specific fuel subsidies are also covered in Article 8.1bis of the chair’s draft text. It states: [Fuel subsidies, that are not specific within the meaning of Article 2 of the SCM Agreement, granted or maintained by a Member to fishing and fishing related activities at sea and/or availed by such a Member’s fishing vessels;] In his telegram to members, the chair said that he would hold bilateral consultations with interested delegations to hear members’ views. However, the chair seems not to be focusing on the special and differential treatment (S&DT) and development concerns raised by several developing countries, including India. This is one of the “make-or-break” issues and it remains to be seen how diametrically-opposed positions can be reconciled. The US, the EU, and other developed countries seem vehemently opposed to India’s concerns on S&DT in the draft text, said people, who asked not to be quoted. PROPOSED WTO REFORMS However, linking the WTO’s response to the pandemic with a TRIPS dimension with other issues has exposed that ultimately the concerns of the US, the EU, and other industrialized countries seem to trump the TRIPS waiver. They will drag the issue on until a ministerial meeting is held in late February or early March, said a negotiator, who asked not to be quoted. The United States Trade Representative (USTR) Ambassador Katherine Tai continues to emphasize her domestic trade agenda based on worker-centered initiatives, including the “fight for increased labor standards, and build diverse coalitions of like-minded allies to achieve our shared goals.” However, on the WTO front, Ambassador Tai said that she is optimistic about the prospects for reform of the WTO. “I want to convey how deeply I care about this issue and how hopeful I am about taking on a reform effort,” she said at a virtual meeting sponsored by the Institute for International and European Affairs, according to a story published in Washington Trade Daily on 13 January. At the virtual meeting on 12 January, she said: “on dispute settlement, … I think that we need to come back to first principles”, perhaps implying the GATT days when disputes were resolved on the basis of “might”. The US created the Appellate Body at the end of the Uruguay Round on grounds that the decisions taken by the Appellate Body must be enforced, according to a legal analyst, who asked not to be quoted. Ambassador Tai went on to say that: “I know there’s a lot of focus on the Appellate Body, and I completely understand why it’s there on the Appellate Body and why it’s there on us. But I want to expand the conversation to say that, … as the WTO needs to be reformed to be responsive, so too does its dispute settlement function need to evolve as part of the institution, and I’ll just say a couple words here. We are really excited — we have started engaging with our partners — we’re really excited to bring a vision and to engage our vision with the visions and interests of all of the WTO members around … what it is a dispute settlement function should provide.” The USTR said, “we think most fundamentally it should facilitate the settlement of disputes between members. Second, I think that fundamentally as an institutional matter, it should reinforce and facilitate the functioning of the other aspects of the WTO, the negotiating function and also the monitoring function at the WTO, as opposed to stifling them. And third, when we talk about dispute settlement, let’s ….. ground it in the settlement of disputes and separate it out from the litigation aspect, which is only one method of settling disputes.” It is, however, unclear about the changes being sought and whether they are “rule changes that would help facilitate the settlement of disputes”, according to Simon Lester, a legal expert on the rules of the Dispute Settlement Body. CONTROVERSIAL
JOINT STATEMENT INITIATIVES According to Article 2.3 of the Marrakesh Agreement, “the agreements and associated legal instruments included in Annex 4 (hereinafter referred to as “Plurilateral Trade Agreements”) are also part of this Agreement for those Members that have accepted them, and are binding on those Members. The Plurilateral Trade Agreements do not create either obligations or rights for Members that have not accepted them.” In a similar vein, Article 3.2 of the Marrakesh Agreement states, “the WTO shall provide the forum for negotiations among its Members concerning their multilateral trade relations in matters dealt with under the agreements in the Annexes to this Agreement. The WTO may also provide a forum for further negotiations among its Members concerning their multilateral trade relations, and a framework for the implementation of the results of such negotiations, as may be decided by the Ministerial Conference.” With the blessings of Ms Okonjo-Iweala for the JSIs during their signing/announcement ceremonies last month, the WTO appears to have embarked on a “path of lawlessness” by hollowing out the Marrakesh Agreement in an unprecedented manner, said people, who asked not to be quoted. Apparently, the real battle over the proposed WTO reforms is on how to amend these two vital provisions in the Marrakesh Agreement to transform the WTO into a plurilateral set-up of pursuing agreements without multilateral consensus, said people, who asked not to be quoted.
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