The World Trade Organization (WTO), or MC12’s 12th Ministerial Conference, raised questions about the ability of its members to reach decisions. Five years ago, the 11th Conference in Buenos Aires failed because the organization was out of work. Therefore, when the MC12 results set arrived, the mood was celebratory. However, it is essential to analyze the results to assess their implications for India.
In the wake of Kovid-19, India has teamed up with one of its traditional allies, South Africa, to ensure access and affordability of vaccines, therapeutics and other essential treatments. In October 2020, the two countries proposed a temporary waiver of four types of intellectual property rights (IPRs), namely, patents, patents, industrial designs, and the enforcement, application and enforcement of the protection of undisclosed information or trade secrets. The proposal was co-sponsored by 63 other members and supported by two-thirds of the WTO membership. Abandoning IPRs and freeing vaccines and medicines from Big Pharma’s monopoly control facilitates vaccine production in developing countries, resulting in improved affordability of these products. The importance of this initiative is highlighted by the fact that more than 80% of low-income countries have not yet received their first vaccine shot.
The proposal was co-sponsored by 63 other members and supported by nearly two-thirds of WTO members. Skipping IPRs and freeing vaccines and medicines from Big Pharma’s monopoly control will facilitate production in developing countries, which will have improved affordability of these products.
However, at the end of MC12, ministers did not approve the proposal; Instead, he recommended that WTO members be granted compulsory licenses (CLs) to increase the production of patented vaccines. Two aspects of this outcome are significant: one, there is no mention of any form of IPR identified by proponents of the waiver proposal, and two, therapeutics and other treatments are currently excluded.
It should be noted that the CLs were first proposed by the European Union (EU) in July 2021 in opposition to the India-South Africa proposal. Surprisingly, the proposal was legalized earlier this year through an informal process of consultations involving the United States and, interestingly, the two original proponents of the waiver. It is not clear why India joined the so-called quad to effectively support the EU proposal and, in the process, weaken its own waiver proposal. The EU’s proposal does not offer any additional benefits, as WTO members may issue CLs to address public health emergencies, such as the Tripps Agreement and the Doha Declaration of Public Health 2001.
In addition, the Indian Patent Act contains a comprehensive set of provisions for issuing CLs. NITI Aayog questioned the usefulness of the equipment long ago and the government’s decision seems even more strange, saying that “compulsory licensing is not a very attractive option …”.
India’s second major concern is the protection of the interests of the country’s small fishermen under the “fisheries subsidies” agreement, which seeks to limit the use of harmful forms of subsidies, threatening the sustainability of fish. The negotiations for “fisheries subsidies” began in 2001 and have consistently maintained that India should have the right to subsidize small fishermen for an extended period. MC12 finally approved an agreement to review subsidies that promote illegal, unreported and unregulated (IUU) fishing and / or overfishing. India has agreed a two-year transition period to eliminate these enormous subsidies. The feature of this agreement is that there are no explicit provisions for special and differential treatment, except for the two-year period referred to herein.
The agreement allows India to provide such subsidies as long as it fisheries in its Special Economic Zone (EEZ). The reference to the EEZ is a repetition of the rights under the UN Convention on the Law of the Sea. The decision in the MC12 provides that more negotiations should be adopted within four years to introduce “comprehensive discipline” on such subsidies. It is important to see how India protects the interests of small fishermen in subsequent negotiations with no explicit provisions on special and differential treatment in the agreement on “fishing subsidies”.
India should be disappointed as it does not mention a permanent solution to the public inventory of food grains in the MC12 result document. This issue is essential for India to secure its rights to pursue its food subsidy program, which stipulates that the subsidies in the Agreement on Agriculture should not exceed 10% of the value of agricultural production. Another crucial issue is that currently New Delhi does not allow the export of food grains from publicly held inventory. As India’s foodgrains exports rise, several WTO members are seeking clarification on whether the source of these exports is publicly procured.
But the MC12 did not provide an opportunity to address India’s concerns. Finally, the MC12 WTO member recognized that it could impose export restrictions on foodgrains to “ensure its domestic food security”. This is no more than old wine in a new bottle, as the WTO’s predecessor, the General Agreement on Tariffs and Trade, in 1948 allowed such restrictions. There is plenty to think about the implications of the results for MC12. India. It is important to watch how they play out and shape government policy and negotiation stances over the next few years.
Biswajit Dhar is Professor of Economics at Jawaharlal Nehru University. KM Gopakumar Senior Researchers and Legal Consultants, Third World Network
The opinions expressed are personal