Geneva, 25 Mar (D. Ravi Kanth) — Members of the World Trade Organization debated on a host of issues at the General Council meeting that concluded on 22 March, amidst proposals to reinvigorate discussions on several issues, including TRIPS and Development, Investment Facilitation for Development, agriculture and development among others, said people familiar with the discussions.
However, statements issued by members suggest that positions have changed little after the failed WTO’s 13th ministerial conference (MC13) in the two key areas of agriculture and fisheries subsidies, said people who asked not to be quoted.
At the end of the two-day General Council meeting on 22 March, members are caught in a reviewing mode, venting frustrations on the lack of outcomes in agriculture and other areas.
Given the upcoming elections in India, the United States, and several other countries, as well as the election for the post of the WTO Director-General, discussions are expected to muddle on with some traction to emerge only in the second half of 2025, said people familiar with the discussions.
TRIPS & DEVELOPMENT
Colombia, along with India, Bangladesh, and Egypt, introduced their proposal on TRIPS and Development at the General Council meeting on 25 March.
For almost 30 years, the industrialized countries, particularly those countries that regard intellectual property rights on “theological” grounds, have scuttled the TRIPS-review discussions as mandated in Article 71 of the TRIPS Agreement, said several people familiar with the Doha work program mandate that called for the review of the TRIPS Agreement.
Article 71 of the TRIPS Agreement on review and amendment states:
“1. The Council for TRIPS shall review the implementation of this Agreement after the expiration of the transitional period referred to in paragraph 2 of Article 65. The Council shall, having regard to the experience gained in its implementation, review it two years after that date, and at identical intervals thereafter. The Council may also undertake reviews in the light of any relevant new developments which might warrant modification or amendment of this Agreement.
2. Amendments merely serving the purpose of adjusting to higher levels of protection of intellectual property rights achieved, and in force, in other multilateral agreements and accepted under those agreements by all Members of the WTO may be referred to the Ministerial Conference for action in accordance with paragraph 6 of Article X of the WTO Agreement on the basis of a consensus proposal from the Council for TRIPS.”
Paragraph 19 of the Doha Ministerial Declaration states unambiguously: “We instruct the Council for TRIPS, in pursuing its work programme including under the review of Article 27.3(b), the review of the implementation of the TRIPS Agreement under Article 71.1 and the work foreseen pursuant to paragraph 12 of this declaration, to examine, inter alia, the relationship between the TRIPS Agreement and the Convention on Biological Diversity, the protection of traditional knowledge and folklore, and other relevant new developments raised by members pursuant to Article 71.1. In undertaking this work, the TRIPS Council shall be guided by the objectives and principles set out in Articles 7 and 8 of the TRIPS Agreement and shall take fully into account the development dimension.”
Yet, 23 years after the Doha mandate, there has been no progress on the review of the TRIPS Agreement, said people familiar with the discussions.
On behalf of the co-sponsors, Colombia explained the evolving scenarios associated with the iron-clad intellectual property rights which failed to properly address issues such as access to medicines and equity.
“The TRIPS rules were pushed to the limit and harshly questioned by a very significant number of countries,” Colombia said.
The World Health Organization is currently involved in negotiations on a pandemic treaty, “with difficult and profound discussions about the role of IP in the diversification of production, equity and access,” Colombia said.
It reminded members that “health costs that affect the budgets of all our countries have been growing steadily and drastically in recent years, and this was caused mostly by new technologies.”
The growing health costs across countries is a cause for concern and an immediate problem that governments are forced to grapple with, including immediate actions by several industrialized countries, Colombia argued.
In addition to the rising health costs, according to Colombia, the world is facing an existential climate crisis that requires “rapid dissemination of green technologies for mitigation and adaptation.”
Colombia said “the existence of exclusivity rights over technologies slows down and makes this dissemination more difficult.”
“Collectively assessing the balance between greater speed and diffusion, on the one hand, and the promotion of innovation by some actors, on the other, is of course a crucial issue in today’s world,” Colombia added.
Moreover, it said that intellectual property, a domain of monopoly rights, “is also at the center of debates on technological development, autonomy, sophistication of production chains and even national security.”
Unsurprisingly, Colombia said that “the great geo-political debates are easily explained in technological terms,” and “the technological gap between developing and developed countries, or the growing technological competition between state actors, has a fundamental component in intellectual property.”
Colombia said that the IP rules are at the centre of the most important debates covering (1) “Human Health”; (2) climate change; (3) budgetary sustainability; (4) economic development of the developing world; (5) geopolitical tensions in technology.
Bogota maintained that “the strictest intellectual property rules belong here, to the WTO”, not to the World Intellectual Property Organization, or the United Nations “whose treaties or provisions are much less strict.”
More importantly, the WTO TRIPS Agreement is the basis of the existing institutional rules scheme regarding intellectual property, and its monitoring and discussion belongs and should happen in this house, in the WTO, Colombia said.
Sadly, it said that the issue was not discussed in the ministerial conferences because of opposition from several industrialized countries who “repeatedly said that intellectual property would not be discussed at the ministerial.”
According to Colombia, “despite being one of the 3 pillars of this organization along with goods and services, and despite being the basis of many of the main problems of our time, it turns out that it was better not to talk about intellectual property.”
Colombia said it “expressed its discontent from the very moment that the modalities and agenda proposed for the ministerial did not include any discussion of intellectual property.”
It is commonplace knowledge that the US and other industrialized countries forcefully pushed the TRIPS Agreement during the Uruguay Round negotiations, despite opposition from several developing countries.
Interestingly, the same countries who brought the TRIPS Agreement into the WTO’s Final Act are now reluctant to discuss changes or to review the current provisions to address various challenges.
Colombia said, “the group of countries that requested this agenda item has ideas and proposals to open the discussion more about the review, about the Biodiversity Convention, about learning from the pandemic, about the technological evolution of developing countries.”
The co-sponsors want members to “bring proposals related to the rules of the Agreement to the center of this Organization, where it belongs, and with increasing importance.”
Colombia said it “will make a series of proposals associated with the periodic review of the implementation of the agreement that must be done according to its Article 71.”
Instead of discussing the issue under the oversight of the General Council, the co-sponsors are told that it must be addressed at the TRIPS Council.
Colombia said “we will be making concrete proposals, and we hope that such a mandated discussion will finally be fulfilled after 30 years of waiting.”
The other three co-sponsors, particularly India, made strong statements on how the discussions should be conducted so as to make progress in the coming months.
China said it “supports further efforts and discussions at the TRIPS Council to advance issues highlighted in the joint communication and report to MC14 on the progress made.”
“In particular, I consider it important to complete the long overdue first review under Article 71 of the TRIPS Agreement, and to intensify engagement to ensure the mutual supportiveness between the TRIPS Agreement, the CBD and the Traditional Knowledge and Folklore,” it added.
Indonesia said, “the use of the TRIPS Agreement to further support the development efforts of developing WTO members could not be understated, especially in the face of continuing unprecedented crises and emerging challenges.”
“Thus, it is critical for members to undertake necessary action that could further amplify the contribution of TRIPS toward development efforts, including in facilitating technology transfer for developing members,” Indonesia argued.
Indonesia said it supports this initiative by the four countries, emphasizing that it is ready to work together with other members – “especially to ensure that TRIPS could address the needs and priorities of developing members.”
However, statements issued by members suggest that positions have changed little after the failed WTO’s 13th ministerial conference (MC13) in the two key areas of agriculture and fisheries subsidies, said people who asked not to be quoted.
At the end of the two-day General Council meeting on 22 March, members are caught in a reviewing mode, venting frustrations on the lack of outcomes in agriculture and other areas.
Given the upcoming elections in India, the United States, and several other countries, as well as the election for the post of the WTO Director-General, discussions are expected to muddle on with some traction to emerge only in the second half of 2025, said people familiar with the discussions.
TRIPS & DEVELOPMENT
Colombia, along with India, Bangladesh, and Egypt, introduced their proposal on TRIPS and Development at the General Council meeting on 25 March.
For almost 30 years, the industrialized countries, particularly those countries that regard intellectual property rights on “theological” grounds, have scuttled the TRIPS-review discussions as mandated in Article 71 of the TRIPS Agreement, said several people familiar with the Doha work program mandate that called for the review of the TRIPS Agreement.
Article 71 of the TRIPS Agreement on review and amendment states:
“1. The Council for TRIPS shall review the implementation of this Agreement after the expiration of the transitional period referred to in paragraph 2 of Article 65. The Council shall, having regard to the experience gained in its implementation, review it two years after that date, and at identical intervals thereafter. The Council may also undertake reviews in the light of any relevant new developments which might warrant modification or amendment of this Agreement.
2. Amendments merely serving the purpose of adjusting to higher levels of protection of intellectual property rights achieved, and in force, in other multilateral agreements and accepted under those agreements by all Members of the WTO may be referred to the Ministerial Conference for action in accordance with paragraph 6 of Article X of the WTO Agreement on the basis of a consensus proposal from the Council for TRIPS.”
Paragraph 19 of the Doha Ministerial Declaration states unambiguously: “We instruct the Council for TRIPS, in pursuing its work programme including under the review of Article 27.3(b), the review of the implementation of the TRIPS Agreement under Article 71.1 and the work foreseen pursuant to paragraph 12 of this declaration, to examine, inter alia, the relationship between the TRIPS Agreement and the Convention on Biological Diversity, the protection of traditional knowledge and folklore, and other relevant new developments raised by members pursuant to Article 71.1. In undertaking this work, the TRIPS Council shall be guided by the objectives and principles set out in Articles 7 and 8 of the TRIPS Agreement and shall take fully into account the development dimension.”
Yet, 23 years after the Doha mandate, there has been no progress on the review of the TRIPS Agreement, said people familiar with the discussions.
On behalf of the co-sponsors, Colombia explained the evolving scenarios associated with the iron-clad intellectual property rights which failed to properly address issues such as access to medicines and equity.
“The TRIPS rules were pushed to the limit and harshly questioned by a very significant number of countries,” Colombia said.
The World Health Organization is currently involved in negotiations on a pandemic treaty, “with difficult and profound discussions about the role of IP in the diversification of production, equity and access,” Colombia said.
It reminded members that “health costs that affect the budgets of all our countries have been growing steadily and drastically in recent years, and this was caused mostly by new technologies.”
The growing health costs across countries is a cause for concern and an immediate problem that governments are forced to grapple with, including immediate actions by several industrialized countries, Colombia argued.
In addition to the rising health costs, according to Colombia, the world is facing an existential climate crisis that requires “rapid dissemination of green technologies for mitigation and adaptation.”
Colombia said “the existence of exclusivity rights over technologies slows down and makes this dissemination more difficult.”
“Collectively assessing the balance between greater speed and diffusion, on the one hand, and the promotion of innovation by some actors, on the other, is of course a crucial issue in today’s world,” Colombia added.
Moreover, it said that intellectual property, a domain of monopoly rights, “is also at the center of debates on technological development, autonomy, sophistication of production chains and even national security.”
Unsurprisingly, Colombia said that “the great geo-political debates are easily explained in technological terms,” and “the technological gap between developing and developed countries, or the growing technological competition between state actors, has a fundamental component in intellectual property.”
Colombia said that the IP rules are at the centre of the most important debates covering (1) “Human Health”; (2) climate change; (3) budgetary sustainability; (4) economic development of the developing world; (5) geopolitical tensions in technology.
Bogota maintained that “the strictest intellectual property rules belong here, to the WTO”, not to the World Intellectual Property Organization, or the United Nations “whose treaties or provisions are much less strict.”
More importantly, the WTO TRIPS Agreement is the basis of the existing institutional rules scheme regarding intellectual property, and its monitoring and discussion belongs and should happen in this house, in the WTO, Colombia said.
Sadly, it said that the issue was not discussed in the ministerial conferences because of opposition from several industrialized countries who “repeatedly said that intellectual property would not be discussed at the ministerial.”
According to Colombia, “despite being one of the 3 pillars of this organization along with goods and services, and despite being the basis of many of the main problems of our time, it turns out that it was better not to talk about intellectual property.”
Colombia said it “expressed its discontent from the very moment that the modalities and agenda proposed for the ministerial did not include any discussion of intellectual property.”
It is commonplace knowledge that the US and other industrialized countries forcefully pushed the TRIPS Agreement during the Uruguay Round negotiations, despite opposition from several developing countries.
Interestingly, the same countries who brought the TRIPS Agreement into the WTO’s Final Act are now reluctant to discuss changes or to review the current provisions to address various challenges.
Colombia said, “the group of countries that requested this agenda item has ideas and proposals to open the discussion more about the review, about the Biodiversity Convention, about learning from the pandemic, about the technological evolution of developing countries.”
The co-sponsors want members to “bring proposals related to the rules of the Agreement to the center of this Organization, where it belongs, and with increasing importance.”
Colombia said it “will make a series of proposals associated with the periodic review of the implementation of the agreement that must be done according to its Article 71.”
Instead of discussing the issue under the oversight of the General Council, the co-sponsors are told that it must be addressed at the TRIPS Council.
Colombia said “we will be making concrete proposals, and we hope that such a mandated discussion will finally be fulfilled after 30 years of waiting.”
The other three co-sponsors, particularly India, made strong statements on how the discussions should be conducted so as to make progress in the coming months.
China said it “supports further efforts and discussions at the TRIPS Council to advance issues highlighted in the joint communication and report to MC14 on the progress made.”
“In particular, I consider it important to complete the long overdue first review under Article 71 of the TRIPS Agreement, and to intensify engagement to ensure the mutual supportiveness between the TRIPS Agreement, the CBD and the Traditional Knowledge and Folklore,” it added.
Indonesia said, “the use of the TRIPS Agreement to further support the development efforts of developing WTO members could not be understated, especially in the face of continuing unprecedented crises and emerging challenges.”
“Thus, it is critical for members to undertake necessary action that could further amplify the contribution of TRIPS toward development efforts, including in facilitating technology transfer for developing members,” Indonesia argued.
Indonesia said it supports this initiative by the four countries, emphasizing that it is ready to work together with other members – “especially to ensure that TRIPS could address the needs and priorities of developing members.”
IFD AGREEMENT
While 126 countries supported the Investment Facilitation for Development Agreement, India, South Africa, and Turkiye raised their objections/reservations on the issue.
The standoff on the IFD Agreement, which was witnessed at MC13 when India blocked an outcome for integrating the IFD Agreement into Annex 4 of the WTO Agreement concerning plurilateral agreements, remained unchanged at the General Council meeting.
Chile, the lead campaigner for the IFD Agreement, and several other countries proposed a “dedicated” meeting under the oversight of the General Council.
China, a prime mover of the IFD Agreement, said “for an effective exchange of views, it is suggested that a dedicated process be established under the auspices of the GC, with the aim of facilitating the consensus to incorporate the IFD Agreement into WTO framework at an early date.”
China expressed hope that “through the joint efforts of family members, the IFD agreement, as one of the major outcomes of the development dimension, will surely find its rightful home in the WTO.”
However, the proposal for dedicated sessions under the auspices of the General Council appears to have not attracted consensus at the meeting.
In the WTO, large support for any initiative is not a guarantee that it will be accepted, as seen in the support of 130 countries for filling the vacancies on the Appellate Body which has been blocked for the past five years by the United States, said a person, who asked not to be quoted. +
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