ToxicsWatch, Journal of Earth, Science, Economy and Justice

At the 12th Ministerial Conference (MC 12) of the World Trade Organisation (WTO) currently taking place in Geneva, leaders from trade unions, farmers organisations and civil society called upon developing country negotiators to reject compromise outcomes at the WTO MC 12. They should reclaim policy space lost during the Uruguay Round by taking  steps to dismantle the WTO. 

These leaders were speaking at an online press conference titled “WTO@27: End of the Road” convened by Focus on the Global South to take stock of the current negotiations and look at the way ahead for global trade policy. 

Speakers from the Philippines, South Africa, India, Pakistan and Australia shared their insights on the negotiating texts currently being tabled at the MC12, assessed the WTOs records especially its role during the pandemic, and articulated the way forward for a genuine democratic multilateralism that puts economic, social and environmental justice at the forefront.

Panelists included Professor Walden Bello from Focus on the Global South, Kate Lappin from Public Services International, Farooq Tariq from Pakistan Kissan Rabita Committee and La Via Campesina, Sagari Ramdas from Kudali Learning Centre and Food Sovereignty Alliance, Pablo Rosales from PANGISDA-Pilipinas, and Dr. Lauren Paremoer from the People’s Health Movement (PHM). Shalmali Guttal, Executive Director of Focus on the Global South, moderated the press conference.

In her opening remarks, Shalmali Guttal pointed to the crisis of legitimacy that the WTO is facing: “The WTO has failed to facilitate timely, appropriate responses to food and health crises—which are most stark during the COVID pandemic on the issue of IPRs on testing, treatment and vaccines. There has not been a single positive outcome for developing countries from the WTO. The last MC held in Buenos Aires had no outcome because of this. Now in Geneva, they want to avoid a repeat of that fiasco and so there is a strong push for compromises at the MC12.” 

‘WTO declarations with some nice language does not mean there is actual consensus on contentious issues. Using the current crisis of the WTO, developing countries must move from defensive to offensive positions and reclaim the policy space lost in the Uruguay Round,’ said Walden Bello. 

Kate Lappin argued that as the world continues to face vaccine apartheid, we need to ensure that the WTO has no role whatsoever in global health policy including on access to vaccines and treatment. Lappin also noted that at the MC12, developed countries are pushing through very anti-democratic rules around domestic regulations in the services sector that will constrain legitimate sovereign policy making spaces of governments. 

Farooq Tariq spoke on the impact of the Agreement on Agriculture (AoA) on rural farming communities in the global south. He said that AoAs free trade, pro corporate farming model has brought food riots, poverty, hunger and misery to millions of farmers in the global south. “They are trying to control everything,” said Tariq. “WTO agreements limit peasants’ ability to grow seeds. Industrial agriculture exploits cheap migrant labor, particularly of women & girls”. Tariq asserted that the way forward for agriculture was the La Via Campesina proposal for a new international framework based on food sovereignty. 

Sagari Ramdas spoke about how three decades of neo-liberal pro corporate WTO policies in agriculture have enabled the reproduction of old patterns of colonial exploitation. She also highlighted the Indian Government’s duplicitous position on the WTO. “On the one hand at Geneva, they are defending farmers and the right to public stockholding. But back home in Delhi they are embracing neo-liberal policies that cut subsidies and impoverish small farmers. India’s embrace of a pro-corporate model of farming has decimated cooperatives and led to dispossession and displacement of millions of small-scale food producers – especially women from indigenous and marginalised backgrounds that represent a vast majority of India’s agricultural workforce,” said Ramdas.

Pablo Rosales pointed out how the Philippine government failed to improve the conditions of small-scale fisherfolk even as it promised to do so by joining the WTO in 1995. The fisherfolk remain as one of the poorest sections of society due to greater liberalisation and deregulation of fisheries. ‘Our experience over the past two decades has led us to demand that fisheries should be out of the WTO’, asserted Rosales. 

Lauren Paremour from PHM said that the current TRIPS text being negotiated in Geneva is not the waiver proposal submitted by South Africa and India, but a far more limited text drafted by the WTO Secretariat that makes it more cumbersome to apply flexibilities during COVID19 than otherwise. “The best option for developing countries on the current TRIPS text at the MC12 is to reject it and walk away. No outcome is better than a bad one.”

Panelists at the press conference were of the opinion that there should be no compromise by developing countries at the MC 12. The short term goal would be to block any bad outcomes at MC 12 and to resist any further encroachment by the WTO in new arenas such as the digital economy and e-commerce, the long term strategic goal for social movements across the world should be for dismantling the WTO. 

Walden Bello adviced the developing countries to look at various UN fora, mechanisms, and multilateral agreements built on as the Universal Declaration on Human Rights to promote economic development, cooperation, sustainable development and well-being.

World Trade Organization (WTO)'s Appellate Body based in Geneva has been made defunct for now. WTO's Appellate Body, a standing body of seven persons that hears appeals from reports issued by Dispute Resolution Panels in disputes brought by WTO Members was established in 1995 under Article 17 of the Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU).

In official statement, website of WTO states, "Given the ongoing lack of agreement among WTO Members regarding the filling of Appellate Body vacancies, there is no Appellate Body Division available at the current time to deal with the appeal." 

On receiving the request of a complaining party, the Dispute Settlement Body (DSB) establishes a Dispute Resolution Panel to hear and decide a dispute. The DSB does this by a process called the reverse consensus. The establishment of a Panel under the WTO, DSU regime is ‘automatic’. As a rule, Panels consist of three persons, who are not nationals of the Members involved in the dispute. These persons are often trade diplomats or government officials. Academicians and lawyers generally serve as Panel members. The terms of reference of the Panel are determined by the request for the establishment of a Panel, which identifies the dispute in question and the provisions of the covered agreements allegedly breached. It is the task of Panels to make an objective assessment of the facts of the case and the applicability of and conformity with the relevant covered agreements. The Panel is not a permanent body. 

The Appellate Body hears appeals from the reports of dispute settlement Panels. The Appellate Body is a permanent, standing international tribunal. It is composed of seven persons, referred to as Members of the Appellate Body. The Members of the Appellate Body are appointed by the DSB for a term of four years. It can be renewed once. It is only the complaining or responding party that can initiate appellate review proceedings. Appeals are limited to issues of law dealt with in the Panel report or interpretations of law developed by the Panel. The Appellate Body may uphold, modify or reverse the legal findings and conclusions of the Panel that were appealed.

The WTO dispute settlement system is a government-to-government dispute settlement system for disputes concerning rights and obligations of WTO Members. Therefore, only governments are provided access to bring and adjudicate their claims before the WTO. The regime excludes within its purview the rights of individual parties, whose claims must be espoused by their respective states in-order to attain the valid locus to present their case before the WTO.

The jurisdiction of the WTO dispute settlement system is compulsory in nature. In pursuance of Article 23.1 of the DSU, a complaining Member is obliged to bring any dispute arising under the covered agreements to the WTO dispute settlement system.

With regard the jurisdiction of the WTO dispute settlement system, it must be noted that the system is confined to contentious jurisdiction. It does not have advisory jurisdiction.

Although DSU imposes a jurisdiction limitation on Panels and Appellate Body, there is no such rule on applicable law. Article 3.2 of DSU directs Panels and Appellate Body ensure clarification of the pre-existing provisions of those agreements in compliance with pre-existing customary rules of interpretation under public international law. 

WTO lost its final Appellate Body member, China’s Zhao Hong on November 30, 2020. Government of USA has been seeking structural reform in the operation of the Appellate Body since 2017. As it could get it done, it engineered its collapse by enduring that departing members are not replaced. By December 2019, the terms of two of the remaining three members of the Appellate Body had expired. At least three members are required in the Appellate Body to hear new appeals. On February 11, 2020, the Office of the United States Trade Representative (USTR), Robert Lighthizer published a 174 page long Report on the Appellate Body of the World Trade Organization wherein it accused the Appellate Body of engaging in ultra vires actions (acting beyond its powers under the mandate) and obiter dicta. 

It has pointed out errors in the interpretation of WTO Agreements. It has complaints against errors by Appellate Body concerned with antidumping, countervailing duties, technical barriers to Trade and safeguard tariffs. Notably, Lighthizer used to represent the steel industry which sought tariff protection through trade remedies. USA's trade remedies to the tune of 20-70 percent (by import coverage) in the steel sector were subject to a formal WTO dispute during 1999-2019. The USTR Report is available   at: https://ustr.gov/sites/default/files/Report_on_the_Appellate_Body_of_the_World_Trade_Organization.pdf

Significantly, filing of appeals has not stopped. Even USA has been filing appeals. Most recently, it notified to the Dispute Settlement Body on 26 October, 2020 of its decision to appeal the Dispute Resolution Panel report in the case brought by China in “United States — Tariff Measures on Certain Goods from China”. 

Whenever it becomes functional again, the Appellate Body can uphold, modify or reverse the legal findings and conclusions of such Dispute Resolution Panels like it did during January 1, 1995- December 10, 2019. The Appellate Body Reports, once adopted by the Dispute Settlement Body (DSB), must be accepted by the parties to the dispute. 

Gopal Krishna