The World Trade Organization (WTO) convened its 12th Ministerial Conference (MC12) in Geneva when questions regarding the legitimacy of the organisation were the loudest since its establishment nearly four decades back, mainly due to its inability to take decisions. Therefore, when the MC12 ministerial decisions were finally adopted unanimously after extended deliberations, the sense of achievement is understandable. Now is the time to dispassionately analyse the outcomes, and to what extent the outcomes meet the expectations of India.
In the wake of COVID-19, India had taken a significant initiative to re-orient the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) so that developing countries can get affordable access to vaccines, therapeutics, and other products necessary for overcoming the scourge of the pandemic. After a considerable hiatus, India took the responsibility of addressing the concerns of developing countries alongside its long-time partner, South Africa.
The two countries brought a proposal in October 2020 seeking temporary waiver from the implementation, application, and enforcement of four forms of intellectual property rights (IPRs), namely: patents, copyright, industrial designs, and protection of undisclosed information or trade secrets. This proposal was co-sponsored by 63 other WTO members, and was supported by almost two-thirds of the membership. The proponents argued that granting of the waiver during the pendency of the pandemic would facilitate access to the technologies for producing the products necessary for COVID-19 treatment, enabling large-scale production.
However, the advanced countries that were backing their pharmaceutical companies, opposed the ‘waiver proposal’, with the European Union (EU) tabling a counter, proposing that compulsory licenses (CLs) on patented vaccines should granted for increasing production. Earlier this year, the EU proposal was granted legitimacy through informal consultations involving the United States, South Africa, and India, which was facilitated by the Director General of the WTO Ngozi Okonjo-Iweala. At the end of this process, the ‘waiver proposal’ was effectively side-lined, and the EU proposal on the granting of CLs was accepted, based on which the ministerial decision was adopted.
The EU proposal does not offer any additional benefits as in the Doha Ministerial Conference there was an agreement that WTO members can grant CLs to address public health emergencies. Moreover, the Indian Patents Act includes a comprehensive set of provisions for granting CLs. Therefore, the question will always be asked as to why India abandoned its own proactive approach and accepted a decision that does not offer any additionality.
India had a strong economic and moral position on the issue of reining-in fisheries subsidies. India’s consistent position was that while it is important to eliminate subsidies granted to the commercial interests, which are threatening global fish stocks, there must be a window for continuing subsidies to smaller fisherfolk who have usually followed environmentally sustainable practices. Continuance of subsidies was also vital for protecting the livelihoods of the small fisherfolk, India argued.
The Agreement on Fisheries Subsidies does not reflect India’s concerns. The agreement enables developing countries to provide subsidies for two years to vessels or operators engaged in illegal, unreported, and unregulated (IUU) fishing or for fishing or fishing-related activities regarding an overfished stock up to and within the respective exclusive economic zones (EEZs).
What happens to the future of subsidies to fisherfolk beyond the two years is left uncertain since there is no other provision in the agreement that guarantees special and differential treatment (S&DT) to developing countries, using which India can grant subsidies. Also, given that the mood in the WTO is to deny China and India the benefits of S&DT, inclusion of these provisions in future negotiations seems problematic.
India should be disappointed as a permanent solution on public stockholding of food grains was not discussed at the MC12. This issue is vitally important for India as it had to secure its rights to continue its food subsidy programme, notwithstanding the restrictions imposed by the agreement on agriculture. Another critical issue for India is that it is not allowed to export food grains from publicly held stocks. As India’s exports of food grains have increased, several WTO members have questioned whether grains from the publicly held food stocks are being exported. But the MC12 did not enable India to address its concerns.
Finally, the MC12 has recognised that WTO members can impose export restrictions on food grains to ‘ensure its domestic food security’. This is no more than old wine in a new bottle as the predecessor institution of the WTO, the General Agreement on Tariffs and Trade, had allowed imposing of such restrictions since its inception in 1948.
Clearly, the MC12 has not given India much to cheer about.
Biswajit Dhar is Professor, Centre for Economic Studies and Planning, School of Social Sciences, Jawaharlal Nehru University. Views are personal, and do not represent the stand of this publication.
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