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After pulling an all‐nighter in Geneva, the 164 members of the World Trade Organization pulled a few paces back from the abyss of trade irrelevance in the conclusion of their long‐delayed and much‐anticipated 12th ministerial conference. For only the second time since the establishment of the institution in 1995, they were able to conclude a multilateral trade agreement. Indeed, they concluded several. This alone is worthy of applause amid the current concatenation of crises from climate change, covid, and military conflict. Because of the success in simply concluding these agreements, the WTO remains relevant in international trade and overall international deliberation.
But what has been accomplished in this package of trade agreements? From perusing them, they do appear to be notable accomplishments; yet, in each of them, there is a telling element of procrastination. Some of the hardest issues have not been resolved; instead, they have been postponed for another day, with firm lines of disagreement still maintained by some WTO members that will doubtless frustrate the achievement of the consensus that is needed to conclude new global trade agreements under the terms of the WTO treaty.
COVID-19 Vaccine Waiver
The headline agreement that is likely to draw the most attention worldwide is the agreement on a waiver of certain intellectual property (IP) rights relating to COVID-19 vaccines. Culminating two years of negotiations, developing countries will be allowed to waive IP protections on the COVID-19 vaccines without the permission of the patent holder to enable increased domestic production of those essential drugs. Yet, these negotiations went on for so long during the pandemic that it is unclear what impact the waiver will have. Though distribution is still a very real concern, there is now an abundance of these vaccines.
It is also unclear why this waiver was needed other than as a moral statement relating to global health equity. To this eye, current WTO IP rules already strike a balance between innovation and access that authorizes WTO members to “adopt measures necessary to public health,” including compulsory licensing of patents. It is difficult to imagine WTO jurists ruling otherwise. In addition, as the pharmaceutical industry has contended, there is scant evidence that the problems in the distribution of COVID-19 vaccines to developing countries have been problems of intellectual property rights; they have been problems of production. Still, the fact that the waiver has been criticized alike by the drugmakers in the developed countries and the campaigners seeking vaccine equity for the developing world suggests that the balance in the current rules has been maintained.
Fisheries Subsidies
Over the long term, a more significant agreement is likely to be the agreement imposing new disciplines on harmful fisheries subsidies. Fisheries subsidies total $35 billion annually worldwide; of these, $20 billion subsidize harmful fishing practices at a time when more than one‐third of the global fish stocks on which billions of people depend for protein are in decline. WTO members have been negotiating on this issue for more than 20 years and were supposed to have concluded an agreement by the 2020 deadline set out in the 2015 Sustainable Development Goals of the United Nations.
Reached in Geneva was only a partial agreement. This new deal establishes rules to prohibit subsidies for illegal, unreported, and unregulated fishing; but it does not discipline subsidies that contribute to overfishing and overcapacity in fishing fleets, which has long been contemplated as part of such a deal. Also, this fisheries subsidies agreement will expire in four years unless WTO members reach a consensus to broaden it to include these other subsidies. Here the obstacle is India, which continues to insist (somehow with a straight face) that developing countries should have a 25‐year transition period to abolish subsidies that contribute to overfishing and overcapacity. Other countries have generally considered a generous period of seven years for this transition.
This said, it is important to note that, as WTO Director‐General Ngozi Okonjo‐Iweala emphasized, this new agreement on fisheries subsidies is the first WTO agreement “with environmental sustainability at its heart.” With 73 WTO members currently engaged in “structured discussions” on a number of issues relating to the nexus between trade and environmental sustainability, the fisheries subsidies agreement may well be a harbinger of negotiations and agreements yet to come. With her own personal commitment on confronting these “trade and” issues relating to the environment, the Director‐General can be expected to do her best to urge WTO members in that direction.
Food Security
Having been warned by humanitarian agencies that trade restrictions are impeding their efforts to obtain food for the hungry and the food insecure amid a growing global food crisis, WTO members, importantly, agreed that they “shall not impose export prohibitions or restrictions on foodstuffs purchased for non‐commercial humanitarian purposes by the World Food Programme.” This is a message they urgently needed to send. The fallout in food shortages from the Russian aggression against Ukraine is only beginning. Russia and Ukraine accounted before their war for one‐third of all global grain exports.
Yet, on the spiraling spate of export food restrictions generally, imposed now by more than 30 countries, including some of the world’s leading food producers, WTO members mostly only echoed in their “emergency response to food insecurity” their ritual statements at past conferences. There is little in this “emergency response” that cannot also be found in the Doha Development Agenda of 2001. It either sidesteps or punts on some key issues. And it falls short of setting the stage properly for a genuine and comprehensive renewal of WTO talks on global agricultural reform.
WTO members should not merely reaffirm, as they do in the Geneva agreement the importance of not imposing food export restrictions inconsistently with WTO rules; they should agree to roll back the current proliferation of such restrictions and to refrain from imposing more. This might best be done by agreeing on binding guidelines that include definitions of “critical shortages” of foodstuffs and when food trade restrictions are “temporary.”
The food security agreement procrastinates also—yet again—on the permitted bounds of food stockholding by WTO members to help feed their poorest people. This also is an issue of special significance to India. WTO members, in their Geneva agreement, “encourage Members with available surplus stocks to release them on international markets consistently with WTO rules,” but it says nothing to clarify how such actions can be done “consistently with WTO rules.” This critical issue has been pushed to the next ministerial conference, which (it can be hoped) will occur after the current global food crisis has passed.
Tariffs on Electronic Commerce
In 1998, WTO members adopted a moratorium on tariffs on electronic commerce. Since then, they have routinely extended it. In the meantime, electronic commerce, free of tariffs, has multiplied many times over. Now, however, India and several other developing countries are insisting myopically that this moratorium is costing them needed revenues. At the last moment in Geneva, WTO members managed to broker an agreement to extend the moratorium once more, this time until the next ministerial meeting or until March 31, 2024, whichever comes first. Thus, here also WTO members have procrastinated and will face the possibility of an end to the moratorium again soon.
If the moratorium ends, tariffs on everything from Netflix films to emails to financial transactions may follow. In addition, if this happens, the WTO will find itself in the unseemly position of facilitating raising tariffs instead of lowering them. After nearly a quarter of a century, this commercial uncertainty should be put to an end. WTO members should not just extend the moratorium on tariffs on electronic commerce; they should make it permanent.
WTO Reform
The fact that the 164 countries meeting in Geneva came so close to concluding nothing in their ministerial conference only underscores the necessity for finding more effective ways for the WTO to reach agreements other than by consensus of all those 164 countries. The WTO treaty does not require that new WTO rules be agreed only by such a consensus. The trade multilateralism established by the WTO treaty also includes the legal authority to conclude new WTO rules that initially bind some but not all WTO members through plurilateral agreements. These plurilateral agreements can later become fully multilateral agreements (such as happened with several of the trade agreements that comprise the WTO treaty).
Looking ahead, WTO members must resist the temptation to have recourse on almost all issues automatically to a consensus approach in negotiations in which nothing is agreed on anything until every negotiating country agrees on everything. This approach enables any one country to veto everything—as India seemed poised to do up until that last all‐nighter in Geneva. Those who wish to write new rules to deal with new trade issues should be permitted to go ahead, even if they do not propose to extend the benefits of those new rules to those who do not agree to be bound by them. And those who would block such actions within the legal framework of the WTO must realize that this only encourages those countries that wish to move forward to do so outside the WTO, which further fragments the multilateral trading system and diminishes the value to the obstructionists of trade multilateralism. Also, of course, it can have the ultimate effect of submitting them in the course of global commerce to rules they played no part in making.
There is no mention of this in the Geneva agreements. Furthermore, there is progress in those agreements on the other reform issue that is gripping the multilateral trading system: the fate of WTO dispute settlement and especially of the necessary centerpiece of dispute settlement, the emptied and paralyzed WTO Appellate Body. Here, too, the members have procrastinated, committing only “to conduct discussions with the view to having a fully and well‐functioning dispute settlement system accessible to all Members by 2024.” Strikingly, there is no specific commitment to restore the Appellate Body, perhaps a tacit concession to the fact‐free bullying of the protectionist elements in sway in the United States on this issue, intended to get the Americans to sign the document.
Ultimately, this will not do. The Appellate Body must be restored and remain independent and impartial if the effectiveness and the credibility of the WTO dispute settlement system are to be perpetuated and if, thereby, the international rule of law in trade is to be upheld in the multilateral trading system. Too, the agreements reached in Geneva, in addition to being largely partial and procrastinating solutions, are but a few of the agreements that must be negotiated and concluded to make the WTO fit for purpose to confront the outpouring of trade and trade‐related challenges in the 21st century.
Nevertheless, it is worth pausing a moment to commend the members of the WTO for stepping back from the edge of the abyss. Now, it can be hoped, they will turn and go with renewed confidence in the other direction, toward a belated fulfillment of the highest hopes of those who created the international trade institution in 1995.
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