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Info Service on WTO and Trade Issues (Feb22/16) Geneva, 17 Feb (D. Ravi Kanth) – The chair of the WTO’s General Council, Ambassador Dacio Castillo from Honduras, is apparently convening a meeting with key members on 18 February to seek their views on the way forward on the crucial issue of the WTO’s response to the pandemic, said people familiar with the development. Earlier, the General Council (GC) chair on 4 February (Job/GC/291) had called for a “strategic pause” in the negotiations apparently due to widening divergences among the members on the various recommendations made by the previous facilitator on the WTO’s response to the pandemic, Ambassador David Walker from New Zealand. Subsequently, on 11 February, Ambassador Castillo issued a draft ministerial declaration that has largely reversed the allegedly unilateral positions adopted by the former facilitator, Ambassador Walker. As previously reported in the SUNS, Ambassador Walker had refused to consider the specific proposals made by India, as well as Sri Lanka, Pakistan, Egypt, South Africa, Tunisia, Uganda, and Venezuela that sought to incorporate their specific development-related issues in the facilitator’s report contained in document Job/GC/281 issued November last year. Prior to the submission of the facilitator’s report, India, in document Job/GC/271, and Sri Lanka, Pakistan, Egypt, South Africa, Tunisia, Uganda, and Venezuela, in document Job/GC/278, had set out their specific issues to be incorporated in Walker’s report. India, for example, proposed among others that the WTO’s response to the pandemic must include “Food Security issues, including Public Stockholding for food security purposes”, as well as “addressing intellectual property challenges in augmenting manufacturing capacities and ensuring unimpeded, timely and secure access to quality, safe, efficacious and affordable health products and technologies for all, for a rapid and effective response to pandemics, including a waiver from specific provisions of the TRIPS Agreement, wherein the TRIPS waiver component has to be finalized before MC12.” India underscored that the WTO response to the pandemic without the TRIPS waiver element will not be credible. In a similar vein, Sri Lanka, Pakistan, Egypt, South Africa, Tunisia, Uganda, and Venezuela sought to incorporate issues concerning “trade rules to address resilience-building, response, and recovery from domestic and global crisis”; “food security”; “economic resilience and recovery”; “intellectual property (including the temporary TRIPS waiver)”; and specific comments on the trade-related aspects in the waiver. The restricted draft ministerial declaration issued by the GC chair on 11 February (Job/GC/292), at the request of Sri Lanka, has incorporated the separate proposals submitted by India, as well as Sri Lanka, Pakistan, Egypt, and South Africa among others. More importantly, the draft ministerial declaration issued by Ambassador Castillo seems to have reversed the allegedly unilateral approach adopted by the former facilitator, Ambassador Walker, who refused to incorporate in his draft ministerial statement (Job/GC/281), the proposals from India (Job/GC/271) and Sri Lanka, Pakistan, Egypt, South Africa, Tunisia, Uganda, and Venezuela (Job/GC/278). Ambassador Walker’s text appears to have undermined the prospects for arriving at a credible and balanced response to the pandemic, as he chose to largely incorporate the proposal of the Ottawa Group of countries led by Canada on trade and health, said people, who asked not to be quoted. Unlike his illustrious predecessors such as Ambassador Crawford Falconer and Ambassador Vangelis Vitalis, both also from New Zealand, who took into consideration the specific concerns of the developing countries in formulating their draft texts on agriculture, Ambassador Walker unilaterally refused to incorporate the submissions made by India, as well as Sri Lanka, Pakistan, South Africa, Egypt and others, in his draft ministerial statement on the WTO’s response to the pandemic, said several people familiar with the development. The GC chair seems to have incorporated specific language from the merged proposal from India, and Sri Lanka, Pakistan, Egypt, South Africa, Uganda, Tunisia, and Venezuela, as well as the Ottawa Group proposal on trade and health, said people, who preferred not to be quoted. The GC chair’s draft ministerial outcome document for MC12 (the WTO’s now postponed 12th ministerial conference) as well as the latest draft ministerial declaration on the WTO’s response to the pandemic has apparently reinforced the Honduran trade envoy’s credentials as an “honest” broker in bringing about convergence among the competing sides and their divergent positions, which is rarely the case in the WTO negotiations that has been invariably biased in favour of the major Northern countries over the last one year, said an envoy, who preferred not to be quoted. Against this backdrop, there are now growing calls for his continuation to oversee the two processes – on the ministerial outcome document for MC12 as well as the WTO’s response to the pandemic – in the run-up to MC12, as and when it is reconvened in May, the envoy said. The two big setbacks in the finalization of the “deliverables” such as the WTO’s response to the pandemic as well as on the agriculture outcomes, arose largely due to the controversial role played by the two persons who chaired these separate processes, the envoy said. In the case of agriculture, the chair, Ambassador Gloria Abraham Peralta from Costa Rica, has refused to take into consideration the specific proposals tabled by the G-33 group of developing countries, the African Group, India, and several other developing countries, while incorporating the specific proposals from the Cairns Group of farm-exporting countries led by Australia, the European Union, and the US among others, the envoy suggested. However, it remains to be seen if the outgoing GC chair will be allowed to continue to oversee these two important processes – the outcome document for MC12 and the WTO’s response to the pandemic – after next week, when he is likely to be replaced by the Swiss trade envoy Ambassador Didier Chambovey. Ambassador Chambovey’s role as a “friend of the chair” on special and differential treatment in the Doha fisheries subsidies negotiations last year has apparently raised sharp concerns over the whittling down of the developing countries’ demands, said people, who asked not to be quoted. Further, the seemingly obdurate positions adopted by Switzerland along with the European Union and the United Kingdom during the discussions on the temporary TRIPS waiver pose serious questions as to whether Ambassador Chambovey can be seen to play an impartial role, said people, who asked not to be quoted. The draft ministerial declaration prepared by the GC chair incorporates the submissions made by all the members which are placed in square brackets, implying that there is still no convergence on them and they need to be further negotiated in the coming days. GC CHAIR’S DRAFT MINISTERIAL DECLARATION The GC chair’s 13-page draft ministerial declaration, seen by the SUNS, is replete with alternative proposals in square brackets. Indeed, the chapeau contains alternatives as well as the deletion of several lines as contained in Walker’s text. It now reads as follows: “We, the Ministers, having met in Geneva, Switzerland, at our Twelfth Session, Desiring to promote strong multilateral cooperation towards tackling the COVID-19 pandemic and supporting response and recovery, and to continue contributing with our joint efforts to build resilience and to better respond to future pandemics; Recognizing that the COVID-19 pandemic continues to have profound impacts on human health worldwide and expressing our sympathies for those whose lives were lost; Regretting the impact that the COVID-19 pandemic continues to place on lives and livelihoods worldwide; ALT 1: Regretting further the [staggering] inequity in access to [difficulty in accessing] COVID-19 [products especially] vaccines, therapeutics and diagnostics, particularly in [some] developing countries and least developed countries; [ALT3: and] [ALT 2: Affirming our commitment to working towards timely, equitable and universal access to safe, affordable, quality, and effective vaccines, therapeutics and diagnostics, with particular regard to the needs of developing and least developed countries;] Conscious that the global recovery remains highly divergent across the membership, [and] that the pandemic continues to pose evolving challenges, in particular related to the possible spread of new variants of COVID-19 and uneven vaccine paces [, and that no one is safe until everyone is safe]; Recognizing with concern the on-going global public health, social and economic impact of COVID-19, particularly on developing and least-developed countries, including food and economic insecurity; ALT1: Conscious that production and supply of COVID-19 products is concentrated and of severe supply constraints of COVID-19 products and affirming our shared ambition to remove intellectual property and other barriers to ramp up and diversify production and strengthen the stability and resilience of the supply chain of COVID-19 products, in particular vaccines, therapeutics, and diagnostics; ALT2: Affirming our shared ambition to take steps to boost supply of vaccines and essential medical products, ramp up and diversify production, and strengthen the stability and resilience of the supply chain, [ALT3: including how the international IP framework can best support the pandemic response;] [Taking note of the decision of the General Council to waive certain provisions of the TRIPS Agreement, in relation to health products and technologies including diagnostics, therapeutics, vaccines, medical devices, personal protective equipment, their materials or components, and their methods and means of manufacture for the prevention, treatment or containment of COVID-19;] Conscious that the WTO provides a common institutional framework for the conduct of multilateral trade relations among its Members; [Underlining the critical contribution the rules-based multilateral trading system should make to addressing the pandemic especially the inequitable access by removing intellectual property barriers to access of technology and know-how and to the resilience and stability of the global economy;] Underscoring the important role that the WTO should play in ensuring a strong economic recovery and building resilience to deal with the current and future pandemics, especially in supporting developing countries including least developed countries; Recognizing that our mutual prosperity and wellness are intertwined and that timely and equitable access to COVID-19 vaccines remains an urgent priority, especially in developing countries including least developed countries; Recognizing the criticality of Food Security [, including Public Stockholding for food security purposes]; ALT: Recognizing that challenges of food security were aggravated by the pandemic, including for the most vulnerable living in environments of low food security in developing countries including least developed countries; Resolving, with this Declaration and [the Action/Work Plan on PANDEMIC response, Preparedness and Resilience contained in the Annex], to take actions to respond to the continuing pandemic and to enhance global resilience against future pandemics; Encouraging the collaboration of the WTO with other relevant intergovernmental organizations in the context of the response to the pandemic; Acknowledging the role that other relevant stakeholders have played in response to the pandemic; Conscious of the need to build on the lessons learned from the COVID-19 pandemic in order to enhance the multilateral trading system’s resilience on the response to and recovery from the current and future pandemics; Confirming that this Declaration and [Action/Work Plan on PANDEMIC response, Preparedness and Resilience contained in the Annex] do not alter the rights and obligations provided in the WTO agreements;” The draft ministerial declaration includes new paragraphs in the introduction that seem to be proposed by the developing countries. They include: New para. 1.2: We recognize that recovery from COVID-19 remains unbalanced due to inequitable access to COVID-19 products and it has revealed deep discrepancies and very limited policy tools available to developing countries and least-developed countries in comparison to those available to developed countries, which does not allow response and recovery and ability to maintain resilience to withstand a global crisis on a scale the world has been facing as a result of the COVID-19 pandemic. New para. 1.3: We stress that trade rules should accommodate the policy space that is particularly important for developing countries and least developed countries since they lack the fiscal and monetary policy tools that developed Members have used to support their economies and people through the COVID-19 crisis. 1.1. To further the prevention, diagnosis, treatment, and control of COVID-19, we recognize the necessity of keeping markets open, consistent with existing WTO rules, to facilitate manufacturing, and supply and distribution, of vaccines, therapeutics, and essential medical goods, including their inputs, as well as the provision of services. 1.2. [We affirm our resolve to ensuring that any emergency trade measures designed to tackle COVID-19, if deemed necessary, are targeted, proportionate, transparent, and temporary; reflect our interest in protecting the most vulnerable; do not create unnecessary barriers to trade or disrupt supply chains; and are consistent with existing WTO rules.] New para. 1.4: We recognize the criticality of Food Security issues, [including Public Stockholding for food security purposes,] including for improving the preparedness of Members to current and future pandemics and [natural disasters]/[global crises]. INTELLECTUAL PROPERTY On a new section on “INTELLECTUAL PROPERTY”, the draft ministerial declaration includes language in square brackets: “1.3. bis [We recall the Doha Declaration on the TRIPS Agreement and Public Health of 2001 and reiterate that the TRIPS Agreement does not and should not prevent members from taking measures to protect public health. Accordingly, while reiterating our commitment to the TRIPS Agreement, we affirm that the Agreement can and should be interpreted and implemented in a manner supportive of WTO members’ right to protect public health and, in particular, to promote access to medicines for all.] 1BIS.1. We recall IP/C/W/669/Rev.1 and affirm the General Council decision granting a Waiver from Certain Provisions of the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (“the TRIPS Agreement”) for the prevention, treatment and containment of COVID-19. This decision is central to the WTO’s Response to the COVID-19 pandemic and we urge WTO Members to rapidly implement and give effect to this decision. 1BIS.2. We also agree that beyond COVID-19, resilience building, response, and recovery to face future health emergencies or other crises, also requires WTO Members to address issues and concerns with respect to intellectual property including the difficulties faced by developing countries and LDCs in using flexibilities of the TRIPS Agreement to protect public health. 1BIS.3. In accordance with existing WTO rules, we further agree that Members will not directly or indirectly, prevent or discourage, another Member(s) from fully utilising the existing flexibilities of the TRIPS Agreement or in any way limit such flexibilities.]” The draft ministerial declaration also contains several additions/changes in square brackets on issues concerning (1) export prohibitions or restrictions; (2) trade facilitation, regulatory cooperation and coherence, and tariffs; (3) the role of trade in services; (4) supporting resilience-building and recovery in developing countries; (5) food security; (6) collaboration with other international organizations; (7) framework for future preparedness; and (8) Action/ Work Plan on Pandemic Response, Preparedness and Resilience. It remains to be seen how the European Union and other members of the Ottawa Group, who have called for trade- related measures concerning market access and tariff-related changes, will respond to the new draft tabled by the GC chair, said people who asked not to be quoted. More importantly, the GC chair has set a new precedent by rectifying the mistakes committed by the former facilitator and thereby, has brought about an element of trust that is acutely lacking in the WTO, said a person, who asked not to be quoted. These changes will require sustained negotiations on the WTO’s response to the pandemic that could delay the process beyond the month of May. In all probability, the chances of reconvening MC12 in May, as is being planned by the WTO director-general, Ms Ngozi Okonjo-Iweala, makes it almost impossible.
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