The first week of May saw a flurry of trade activity in Geneva, as World Trade Organization (WTO) members sought to move from debate to decisions in supporting COVID-19 response, while laying the groundwork for two ministerial-level meetings planned before year’s end.

These talks took place within the context of the WTO’s Trade Negotiations Committee (TNC), which is also an informal Heads of Delegation gathering, as well as the General Council. The latter is the WTO’s highest-level meeting outside of the ministerial conferences.

Just weeks ago, WTO Director-General Ngozi Okonjo-Iweala announced a virtual meeting of trade ministers in July, with WTO members looking to clinch a deal that would discipline harmful fisheries subsidies, along with adopting decisions on a few other select issues. Discussions are still underway on which issues might be added to that agenda.

Okonjo-Iweala reported to WTO members at the TNC meeting that other issues that could form ministerial outcomes, either in July or at the Twelfth Ministerial Conference (MC12) at the end of the year, include some deliverables linked to the Organization’s farm trade talks in the form of a “food security package.” Also vital would be some sort of a “framework” that would guide the Organization’s work on trade and public health.

“Views are coalescing around the most feasible priorities for delivery between now and MC12 — although of course there are gaps on how we get there and on the content of prospective results,” Okonjo-Iweala noted, promising a busy calendar of meetings over the rest of the year to lay the groundwork for consensus outcomes, especially in the months leading to the August hiatus. “Week in, week out, this is what we will do now,” she said.

The WTO’s MC12 is set to take place from 30 November to 3 December 2021, marking the first ministerial conference in four years. This is an unusual gap in the trade context, due primarily to COVID-19, with ministerial conferences normally set to meet biennially.

Along with the multilateral negotiating tracks of fisheries and agriculture, as well as the COVID-19 response, trade watchers will also be looking to see what outcomes are announced by various “joint initiatives” underway among groups of WTO members on investment facilitation, electronic commerce, domestic regulation in services, gender, environment, plastic pollution, and micro-, small, and medium-sized enterprises (MSMEs).

Eyes on COVID-19 response

The prospect of an agreed waiver to some of the WTO’s intellectual property rules has taken on new momentum over the past week, amid the burgeoning health crisis seen in countries ranging from India to Brazil, and the announcement from US Trade Representative Katherine Tai on 4 May that Washington would support the proposal.

“This is a global health crisis, and the extraordinary circumstances of the COVID-19 pandemic call for extraordinary measures,” Tai said in a statement that showed a marked change in stance for the US. “The Administration believes strongly in intellectual property protections, but in service of ending this pandemic, supports the waiver of those protections for COVID-19 vaccines.”

Tai’s announcement came after the US trade chief had met with vaccine manufacturers bilaterally over the past few weeks, including Moderna, AstraZeneca, Novavax, and Pfizer. The proposed waiver was put forward last year by India and South Africa, and would waive WTO members’ obligations regarding the “implementation, application, and enforcement” of those provisions of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) pertaining to copyright and related rights, industrial designs, patents, and protection of undisclosed information when it comes to efforts directed at fighting COVID-19.

The TRIPS waiver proposal, together with a separate submission from the “Ottawa Group” of WTO members on tackling goods-related issues such as supply chain transparency, reduction in applied tariffs, and trade facilitation in the area of vaccines, were both “hot-button topics” during the week’s meetings.

Statements made throughout the meeting indicated that the issue of how trade can support the public health response – and the risk of hindering it by inaction or by other means – would play a definitive role in both the pandemic response and the WTO’s ability to position itself as a source of solutions to today’s and tomorrow’s challenges, especially in light of past difficulties under its negotiating arm.

“We need to have a sense of urgency on how we approach this issue of response to COVID-19 because the world is watching,” said WTO Director-General Ngozi Okonjo-Iweala at the General Council meeting. “The issue of equitable access to vaccines, diagnostics and therapeutics is both the moral and economic issue of our time,” she stated.

The WTO chief named a range of issues where the membership needs to direct their efforts as part of the public health response, from sharing vaccines to ensuring that any unused manufacturing capacity is put to work. Also essential, she said, would be to address any trade barriers that are contributing to supply chain disruptions, along with moving to text-based talks on the waiver to find a “pragmatic” solution.

India, as one of the co-sponsors of the TRIPS waiver proposal, reiterated earlier in the week at the TNC meeting that the waiver is temporary, and also its top priority.

“To slow down the virus’s ability to infect new people and mutate further, we need true global vaccination drive in a time bound manner, and the limited Waiver is an effective and pragmatic way to help in achieving it,” said India’s WTO Ambassador Brajendra Navnit. “An outcome on this will not only help in saving valuable human lives but will also give a comforting signal to boost the consumer confidence and will accelerate the recovery of global trade and world GDP,” he argued.

EU position in focus

Whether the EU will follow the US in endorsing the waiver remains to be seen, although trade sources note that some EU member States have already indicated to media outlets and elsewhere that they may be willing to reconsider their position on the intellectual property issue. France has now indicated that it could back the waiver, while Germany is among those wary of the move.

At the General Council meeting, EU Ambassador to the WTO João Aguiar Machado told members that supply chain disruptions and transparency were key issues that the Organization could address in the context of the pandemic response. These are among the areas named in the Ottawa Group’s proposal. He also suggested that on intellectual property rights issues, WTO members make the most of the flexibilities inherent in the WTO’s TRIPS Agreement and affirmed in the Doha Declaration on the TRIPS Agreement and Public Health in 2001.

“The European Union is ready to discuss how to facilitate the implementation of the TRIPS Agreement flexibilities. We are ready to support a statement that reaffirms the TRIPS flexibilities, confirming that during a pandemic the obligation to negotiate with the right-holder can be waived and that a compulsory license can cover exports to all countries that lack manufacturing capacity,” he said.

Another issue Aguiar Machado flagged was whether members have legal frameworks set up at home that enable them to make use of the TRIPS Agreement’s flexibilities, especially when it comes to the use of compulsory licensing.

After the US announcement, which came following the conclusion of the General Council meeting, President of the European Commission Ursula von der Leyen wrote on Twitter that while Brussels would be prioritizing production increases in the vaccination efforts, it is “open to discuss any other effective and pragmatic solution.”

“In this context we are ready to assess how the US proposal could help achieve that objective,” she continued.

Coming up

India and South Africa are planning to circulate an updated waiver proposal before the end of the month. While talks on the waiver will continue at the TRIPS Council and return back to the General Council, trade sources note that the Director-General also listed the possibility of developing a small group to discuss trade and public health issues going forward. The WTO Secretariat will also hold a webinar on 12 May on the TRIPS Agreement and the dissemination of health-related technologies.

* * *

By Sofía Baliño, Communications and Editorial Manager, Economic Law and Policy, IISD