WTO Public Forum Panel Discussion: Relevance and Future of the WTO: From Seattle 1999 to COVID Deadlock 2021

WTO Public Forum Video and Transcript

Clip: Jane Kelsey, Professor of Law, University of Auckland Clip: Sophia Murphy, Executive Director of Institute for Agriculture and Trade Policy Clip: James Thuo Gathii, Wing-Tat Lee Chair in International Law and Professor of Law, Loyola University

WHAT:

  • Expert speakers from academia and civil society will explore how WTO rules recently have hampered the fight against COVID-19 after decades of WTO-directed hyperglobalization resulted in a lack of resilience in supply chains and production capacity in rich and poor nations. At a time when the WTO’s disfunction is on full display (via a derailed dispute settlement system, efforts to bend the rules to negotiate rump plurilaterals, and continued hurdles to global supply of COVID-19 vaccine and medicines), it is imperative to realize a new model that — instead of exacerbating insecurity, inequality and instability — facilitates the improvement of the livelihoods, health and wellbeing of all people around the world and the long-term survival of the planet.

WHO:

  • Jane Kelsey, Professor of Law, University of Auckland

  • Sophia Murphy, Executive Director of Institute for Agriculture and Trade Policy

  • James Thuo Gathii, Wing-Tat Lee Chair in International Law and Professor of Law, Loyola University

  • Moderator: Lori Wallach, Director of Public Citizen’s Global Trade Watch


Lori Wallach 

Welcome, everybody. Thank you for joining us for a panel on the Relevance and Future of the WTO (World Trade Organization) from Seattle 1999 to COVID Deadlock 2021. My name is Lori Wallach. I’m the director of Public Citizen’s Global Trade Watch. And it’s my honor to moderate this panel Relevance and Future the WTO from Seattle 1999 to COVID to Deadlock 2021, just in case anyone joined late, I thought I’d restate the name of the panel. It brings together a diverse group of experts whose thinking and scholarship on the WTO is especially insightful. Before introducing them, I wanted to set the scene a bit, 25 plus years into the World Trade Organization’s existence. The global economy that its rules have wrought feature features brittle, hyper globalized supply chains that are causing shortages and delays on access to critical goods. Food Security remains a crisis in many parts of the world. We’ve witnessed extreme corporate concentration of power and of production. And we have seen monopoly as well, with respect to access to medicines and other technologies now causing a crisis in the context of the COVID pandemic. We have seen people in rich and poor countries alike not have access to vaccines, medicines, test kits, ventilators and have not the ability to make it nor to have the global economy deliver it with a much much harsher impact and the majority of living in developing countries. Now obviously, the pandemic didn’t create these problems. The COVID crisis was like a stress test that expose what many people in countries around the world already knew: the WTO rules, much of which extend beyond trade, and the hyperglobalisation that this model of rules for the global economy created is not working for most people. The result is that the perspective of many policymakers, scholars and activists above the WTO teeter-totters between it being irrelevant and it being damaging. To the extent a lot of people now even know what WTO stands for they think about it as an obstacle to access to COVID vaccines. This diverse group of experts will discuss how the WTO relates to the challenges of our time, from economic inequality and hyper-financialization to the climate crisis and global corporate monopoly. To foreshadow it does not come out well for the WTO. at a time, where all of these challenges are racking the world the WTO’s dysfunction is on full display. It’s not only not part of the solution to the world’s challenges, but sick is a significant obstacle to ending the COVID-19 pandemic. It’s become a circular firing squad on climate policies. And we now see efforts to evade the WTO procedures and members views to negotiate rump plurilaterals to further impose rules not desired or supported by most countries in the WTO or people around the world. So I will add one further note from D.C. where I want to flag that the WTO is much better now than it has been since the Seattle WTO protests, but only in the context of being an obstacle to access to essential vaccines, tests and treatments necessary to end the COVID pandemic. Coming from Washington, I would like to now introduce the rest of our panelists. After flagging that with a stellar panel, one missing perspective is labor. The rules were three speakers only. And so I would like to just for the voice not in the room reference to people please the ITUC recent report on the future of the WTO from July 2021. To summarize Sharan Burrow the executive secretary, “Hope for reforming the WTO has been hidden in the shadows since the Battle of Seattle. 20 years on reform is back on the negotiating table backed by renewed public consciousness. The renewed opposition to multilateralism and global trade is born of a frustration the system has failed in many cases to deliver secure jobs, decent work and opportunities.” So with that, please allow me to introduce an amazing panel starting with Professor James Gathii. The wing talks lead chair and international law professor of law at Loyola University. Professor Gathii has been a professor at the university and Loyola University Chicago Law School since July 2012. He’s a graduate of the University of Nairobi, Kenya and Harvard Law School, my alma mater. He sits on the board of editors of the American Journal of International Law, the Journal of African Law in the Journal of International Trade Law and Policy, among others. His research and teaching interest on public international law international trade law third-world approaches to international law African constitutionalism. He’s an expert on the WTO. Professor Jane Kelsey, professor of law at the University of Auckland. Professor Kelsey specializes international economic relations. Her law degree is from Victoria University of Wellington, Oxford University, Cambridge University, a Ph.D. from the University of Auckland. Jane has worked on WTO issues since the Brussels ministerial meeting for the Uruguay Round before the Uruguay Round in 1990 before there was a WTO. In addition to her research and training, she advises and provides pro bono training for developing country governments and civil societies on matters relating to the WTO. Sofia Murphy, recent Ph.D. Dr. Sophia Murphy and congratulations on it is the executive director for the Institute for Agriculture and Trade Policy in Minneapolis, Minnesota in the United States. Sofia Murphy joined the IATP as executive director in October 2020. She previously worked on the staff. She is a food systems and international economy expert with 30 years of professional experience on these issues, a policy expert and advocate who’s focused on resilient food systems agriculture, international trade, Sophie has worked primarily with civil society organizations, governments, and intergovernmental organizations. She first came to IATP in 1997 and spent a lot of time in IATP’s Geneva office. So with that stellar panel introduced, I’m going to post some questions, and we’re going to do rounds of answers. So I am going to first call on Jane Kelsey. And then I would like please Professor Gathii and Dr. Murphy to answer this question. But before we dive in, I would like to recognize someone who’s very present, I think in all of our hearts and minds right now, and who sadly has recently passed, and that is Chakravarthi Raghavan. Thinking about the discussion we’re about to have so many of us were educated, informed, shaped, advised, supported by Raghavan, who, from his powerhouse writing, and research and analysis, help literally educate the entire world, about the Uruguay round negotiations, about the WTO, about its perils, about its opportunities, and then monitored its outcomes for many decades. And his passing is the passing of a giant. And I wanted to honor and recognize him as we start this discussion because I think for many of us, he helped bring us into thinking about the WTO. So professor, Kelsey, and crew. Here’s the first question. Just to frame the question of what has been going on. What are some key examples of the WTO function that you find particularly egregious that undergird your views about the WTO its current relevance and its future course? And I’d like to recognize it is 3 a.m. in New Zealand, so we especially appreciate Jane for joining us, Professor Kelsey.

 

Jane Kelsey 

Thank you, Lori, it’s actually 3:45 a.m. now. And I would like to start off with you left talking about the contribution of Raghavan because for me the current dysfunctions in the WTO were always there as systemic. You mentioned that I began working on this area back in 1990, in the Brussels ministerial, in the midst of the Uruguay Round, and it became apparent to us then that there was this overreach. The notion of trade was being taken well beyond any traditional concepts and being expanded behind the border to put constraints on the ability of governments to regulate. And that was in particular in the areas then of services attempts to bring investment, and of course, intellectual property rights. And that overreach became problematic right from the beginning from the first ministerial meeting in 1996. So way before 1999, it was already evidence that attempts to put investment and government procurement and competition, labor and environment into the WTO was controversial internally. And by the time we got to Seattle in 1999, controversial externally as well. And the controversy wasn’t just because of these issues, it was because they were linked to locking in what was then the nascent neoliberal model of globalization that has intensified through to the hyperglobalisation of today. And it was always apparent to those of us watching that, that the intrinsic instabilities and dysfunctions in that economic model, we’re going to flow through into the WTO. And when it became impossible to deal with that, in the WTO, they then went outside, we had various free trade agreements, we had the trade and services agreement, we had the Trans-Pacific Partnership Agreement, TTIP, and so on. And now there’s an attempt, when many of those in fact failed to bring that even more expensive agenda back into the WTO via these so-called joint statement initiatives, and going back into the secrecy that was equally controversial from the early days, and was forced to open up. And so I think the dysfunctions that we’re seeing in the WTO now are actually intrinsic to its origins, and the nature of it, and the determination of the richer countries of the world, to demand the right to continue making rules for themselves, and for their corporations, and are unwilling even to revisit those when they’re not even working for their own places.

 

Lori Wallach 

Thank you very much. James, your views.

 

James Gathii 

Thank you so much, Lori, and thanks for inviting me to this conversation with these great experts. And I also want to pay tribute to Raghavan. I, as a young academic, read a lot to understand what is going from him to understand what was going on in the WTO. So I mean, I largely agree with, with Professor Kelsey and I want to focus in particular more internally, with one of the, I guess, best examples for me of the egregious dysfunction within the WTO. And that is its decision-making process. Now, its decision-making process requires decisions to be reached by consensus. And I believe for the WTO to break the impasse and the closed-door secretive nature of decision making, that Jane referred to, that the WTO must resort to its own rules that require voting under the Marrakesh agreement, and voting is in my view, very important not just to break the impasse, but because it reflects an important democratic principle by which international especially multilateral organizations should run so that they are not paying homage as Jane referred to, to the interests of Western countries and in particular of their multinational corporations. So decision making at the WTO, notwithstanding the fact that the rules are pretty clear that in the absence of consensus, that voting would be the way to resolve the impasse has nevertheless continued to be dominated by, in particular the quad countries that have sought to pursue their priorities when the WTO works, and to frustrate the WTO when they don’t support the interests of the rest of the membership, and in particular, the overwhelming majority of the WTO members that are developing countries. So if we think of the WTO as the ambassadors in Geneva like to remind us very often, as a member-driven organization, there’s no reason why another important body within the WTO the trade negotiating committee should not be the one that should be responsible for shepherding through negotiations and other decisions, rather than to positions in the consoles and in the committees, which should circuit the very important design of decision making in the WTO, through the trade negotiating committee that was created to address one of the major shortcomings of the negotiations in the Uruguay Round, when developing countries in particular for the negotiating, not with each other, but with a Secretariat that is dominated and controlled by the quad countries. So I’d say those, in my view, are two examples of one of the most egregious examples of dysfunction within the WTO that has made it impossible to, for example, get the TRIPS waiver through or, you know, that led to the death of the appellate body. And, you know, one can go down the list and let’s have a conversation I want to talk about the proposition of the development agenda, which has also been killed by this dysfunction in decision making.

 

Lori Wallach 

Thank you. Thank you very much, Professor Gathii. And Sophia.

 

Sophia Murphy 

Thank you, Lori, and I add my condolences to Raghavan’s family, he was an amazing person to know and to work with, for many of us at IATP. Um, I think that I would sort of maybe build on what James was just saying, but maybe I think for me, the obvious dysfunction of the WTO is it can’t do what it’s supposed to do. It’s unable to reach agreement. And then we would have lots of different reasons for why and whether it should and I’m what the agenda is, but I think some of it is perhaps to do with the powers that it was endowed with perhaps the fact that it is primarily a negotiating organization, and has its rules enforcement mechanism, I think has proved a very brittle kind of strength, and has overshadowed the possibility of discussion of experiment of a kind of a more adaptive approach to international rulemaking that I think would be better suited to the context that we’re in. And I feel like although I agree with Jane that the agenda was so overloaded in the 90s. Now the agenda in some ways is emaciated. I there’s this, this is the WTO. And this is the government’s decision. It’s not, you know, it’s not as if the institution decides but to take a recent example, that the UN just recently held this one day food system summit. And from early on, there were different interests and having a conversation about trade. And for many of us in civil society, trade is an enormous problem to food security and nutrition ambitions, and also a very necessary part of the policies that we want to see. But we can’t talk about it, governments won’t allow us to discuss it outside the WTO. And the WTO has no agenda that really deals with the public interest in agriculture by insisting it’s about commercial interests instead. So I think that there’s a deep dysfunction in the way that governments isolate their trade policy from other areas of what they’re doing. And so it’s not that everything should be trade and — but if we’re not talking about employment, and about the climate crisis, about biodiversity protection about women’s emancipation, you know, where traders in all of this, and it’s a very dysfunctional approach to try to isolate it the way that it has been the way that members have chosen to isolate it. And I think that that then is contributing to this failure to adapt. And I mean, I can come back to it later. I think there’ll be other questions. But I think that that is one of the crucial aspects of multilateralism, we’re in an uncertain world, the rules we have now for agriculture don’t reflect the actual risks, nor potentially the opportunities that food systems have. And there’s no way for us to get in and do something about it.

 

Lori Wallach 

Thank you very much for that. For our next round. It’s going to be a little bit of speed round. And just to get folks ready, I’d like to go James, Sophia, and Jane. So if you had a magic wand that enacted WTO changes, can you please share the high level what your top five changes would be to have the WTO instead of exacerbating and security inequality and stability were designed to facilitate the improvement of the livelihoods health well being of people all around the world and the long term survival of the planet. So a sentence or so on each and let us please start with Professor Gathii. Your top five magic wand, fixes.

 

James Gathii 

Yes, that’s a hard one, Lori. But I guess, you know, the first one is really prioritizing the developmental objectives. In fact, our say that, in my view, in addition to what I’ve said about breaking the impasse in decision making, it’s really prioritizing the developmental objectives in the Doha development agenda. And in particular, making sure that the this is a little more limited agenda, you know, sort of playing inside baseball as well in the United States, you know, making sure that their 155 or so provisions in the WTO covered agreements are implemented in ways that are useful for developing countries and in particular, least developed countries, including not just longer timeframes, but the infant industry provisions, the balance of payment provisions, the technical assistance, the technology transfer, that’s already more than five. Right now, this agenda is stuck in the WTO Trade and Development Committee where developed countries have blocked all but 10 of those agenda items. And even with those agenda items only interested in proceeding with two with respect to less developed countries. So I mean, I’ve said more than five things but those would really be my top priorities.

 

Lori Wallach 

Thank you, Sofia.

 

Sophia Murphy 

Well, as I had said, I would end the isolation of tape policy and government decision making integrated better, I would end the absurd level of secrecy required especially of our negotiators and Parliament’s when discussing trade, it’s unconscionable, and create a formal channel for NGO engagement for civil society engagement, the World Trade Organization, I don’t think you can have accountable and transparent process without recognizing the need that are the limitations on how well governments can represent points of view. There are lots of great examples in the multilateral system to draw upon. I think the WTO has to take on concentrated market power as a serious distortion. There’s this obsession with state trading, and the failure to understand just what concentrated power takes many forms and needs addressing. And finally, I would protect something they’re called multi-scalar consonants. And what I mean by that is that there are different scales to policy and to economics, and the idea that there’s a single definition of efficiency and a model for economics that would suit no matter the context, the place, or the or the numbers of people involved in activity is wrong, we need to redefine our efficiency and separate out the single economic model from our trade laws.

 

Lori Wallach 

Thank you very much, Jane.

 

Jane Kelsey 

Well, following what I said, first, I would strip the WTO back to being a trade organization. Second, I would open a discussion across a range of organizations on what trade rules for the 21st century look like that address the various crises that confront us, the food crisis, the financial crises, crises of inequality, and poverty, the climate crisis, of course, now, the pandemic crisis, all of which are deeply integrated, and linked to that the dysfunction attached to the kind of supply chain dependencies that have been created through these rules. I will go to the preamble of the WTO. And say you talk about full employment, rising living standards for all, preserving the environment, ensuring poorer countries have a fair share. And I would say, let’s put that first. I would then go to organizations that have done great work on some of the anti hyperglobalisation in particular, and division on globalization, and development strategies, and look at what an alternative approach to dealing with the trade issues in the 21st century might look like. And finally, I would say, let us understand that trade is part of the economy that is part of society. And let’s get the order and the balance right, where rules made and this organization no longer shape the future options of society, but the needs of people of the world and of the world itself take priority.

 

Lori Wallach 

Thank you very much. So we’ve just heard, what are some very important visions of the change that’s needed. And if you were listening closely, you realize we have three different perspectives that those changes represent about the future of the organization. And I want to now invite our panelists to hone in on one of these changes, to connect us to what is happening in the WTO now, versus what you think should be happening, and how that change that you’re going to hone in on of your list could relate to the broader future of global commercial roles. That’s to say the speed round was to lay out the vision. But there was a magic wand involved. And now we’re coming down to the practical part, which is, what is the path practically sands the magic wand to any kind of reform amongst those reforms relative to what’s happening. So an example that I would note, for instance, is for everyone who’s concerned about disappearing policy space. And the way in which the so-called trade rules are imposing on areas totally unrelated to trade, and really imposing a different kind of agenda, such as to the digital trade, digital trade, air quotes, given it has nothing to do with trade, that kind of agendas, the WTO is going this way towards yet another Cliff that it is sending itself towards. And in fact, people and governments around the world are saying, digital government should government should be going this way. So that would be an example of what might want to make sure happens versus what is happening. And what does that mean. So I am now going to start in this round as you are catching on, I’m having different people go first. Sofia, if you may, can you have you’re honing in. And I’m one of those changes to give us a perspective of what could actually be a future.

 

Sophia Murphy 

Different answers in my mind at different moments, even in the last half hour, but um, so I think to do anything, we need to build trust. And I do think that the WTO dysfunction is also profoundly related to a lack of trust among members negotiating and then between governments and their view of what the WTO is and what it does. And I think that if we were to build trust, we would be redefining what the role is of this multilateral organization is in the larger policy realm. And I think an example in agriculture that would really has tremendous power to move us forward is to look again, at this question of domestic support, subsidies, as many people talk about them. And there was a recent report on that, and I have my differences with some at the analysis. But the point, that the WTO is, in fact, the only place where the discussion of how domestic decisions about agricultural spending affect people and agricultural systems elsewhere, is very important. It’s a necessary discussion doesn’t need to be framed as a neoliberal, you know, right-to-sell obligation to buy, which is what the agricultural agreement also set up. But it is a really important conversation about where domestic policy decision-making must accommodate, I think the interests of other people who happen not to live in that country, but are affected by the policy. And there is a huge realm there of money ill-spent of private monopolies encouraged in some cases, some public monopolies also encouraged, tremendous environmental damage, hugely vulnerable workforce that often is not protected by labor laws that otherwise protect citizens in the same country. And so I think we would have a really rich discussion on what to do with public investment and spending in agriculture if we were freed from the trade distorting or not difference, which is actually kind of meaningless. And we were able to start to build that from countries sort of national objectives around Food Security and Nutrition, and commerce would be part of it. And then how that would relate to their neighbors that this is not about domestic policy space to decide at home, only because you have to be thinking about what happens elsewhere. And our food systems are deeply integrated and will be more so climate change is only going to increase that integration. I think the WTO is a perfectly fine place for the conversation as long as you sit down and talk without the threat of trade sanctions over your shoulder. And as long as there’s no premise that someone has to import to before you can start the conversation.

 

Lori Wallach 

Thank you very much. Professor Gathii.

 

James Gathii 

Thank you very much, Lori. So I mean, I think I want to go back to my overriding point, which is that developed country members of the WTO, especially the United States must stop the veto they hold over the agenda of the WTO. And also abandon this neoliberal trade agenda. And I just want to quote from last week, Mia Mottley, the Prime Minister of Barbados, what she said about the United Nations is very applicable in my view, to what is happening at the WTO. And in her speech, she said, if we can go to the moon or solve male baldness, then we can solve simple problems like letting people eat. It’s really not very difficult. As she said, if the WTO continues to be dysfunctional, as it has been, we know that the big countries continue to implement their neoliberal agenda in the trade context, in bilateral and regional and mega-regional trade agreements. So as Lori, you encouraged us to think about the WTO, I also don’t want to lose sight of the fact that because of the relevance of the WTO because of its dysfunctions, the United States, as you know, is pursuing trade agreements with Kenya, among many other countries, undermining, therefore, the objectives of the GATS as Jen was reminding us raising standards of living, ensuring full employment, in accordance with the goals of sustainable development, as the Marrakesh agreement also provides. And in particular concerned that if the WTO continues to be irrelevant, that its neoliberal agenda is being recreated outside the WTO in bilateral regional and mega-regional trade agreements. And this gives unprecedented leverage to developed countries to continue deepening this problematic trade agenda and to undermine this, and therefore it’s like the Africa continental free trade agreement that, in my view, is seeking perhaps a different goal for the African continent. But now it’s confronted with a reality about sort of this bilaterals that the United States or the big powers are having with individual countries. So I want to suggest that we have to think simultaneously, not just of the WTO, but what is going on outside the WTO, because of the WTO’s dysfunction in setting a global trade agenda that might go in a different direction.

 

Lori Wallach 

Thank you very much, Professor Kelsey.

 

Jane Kelsey 

Hopefully, I can draw some of those themes together, including from what you Lori identified in the digital space. Because at the big picture level, what I see happening now is that the major powers who, in the Uruguay Round constructed the WTO to work for them are now finding that they no longer exercise the same level of control that they did, and are seeking to remake the WTO again, in the interests of themselves and their corporations. And we see this, especially with the so-called joint statement initiatives and mandated plurilateral negotiations that were launched in the last Ministerial Conference in Buenos Aires. And in particular, bringing in the area of so-called e-commerce but in fact, the regulation of the digital domain, and here they interface with what James Gathi was talking about is especially apparent, because those rules were pre-cooked. They were pre-cooked in the Trans-Pacific Partnership agreement by the US on the basis of the so-called digital two dozen demands of us big tech. They tried to advance them in the trade and services agreement. And they have increasingly included and locked them into a number of North-South free trade agreements. And now we have these negotiations unmandated In the WTO, that are seeking to lock in on a global level rules that are counterproductive, even for the advocates, because the same governments are facing the problems of the regulatory void, which these rules seek to make permanent in areas such as corporate mining control and exploitation of data, political manipulation, anti-competitive practices, and fraud tax issues. And so this is absolutely huge. And that is what is happening now what needs to change is that that conversation needs to go into the proper, open, multifaceted arenas that recognize that there are huge risks associated with the digital space as well as huge opportunities. And the rules need to be balanced, there need to be proper incentives for developing countries to engage in digital development strategies, which is absolutely not what this agenda is about. And so this can’t be done inside the WTO. They have shown that even when there is not a mandate, but there is a work program that has not mandated negotiations, they will take the ball and run with it anyway. And that is compounding the crisis in the WTO. Because it has shown that rich countries and multinational corporations to which they are aligned, are determined to continue ensuring global rules designed by and for them. And until that is fixed, the WTO will remain broken.

 

Lori Wallach 

Thank you very much, Jane. I’m just reflecting on and I don’t know James how you feel about this, but wouldn’t it have been great to have Professor Kelsey at Harvard Law School? Instead of having to go the whole way around the world and 13 timezones to get her scholarship. I’d like to flag for people, some excellent work that Professor Kelsey has done with respect to also the legal legitimacy of these joint statements initiatives. Obviously, the argument that’s just been made about the structural issues is spot on. But to the extent that the WTO effectively keeps serving itself up hand grenades with the pins polled for breakfast, lunch, and dinner, the whole JSI process appears to have perhaps the last illegitimacy meal of the WTO is imperiled legitimacy, given the agenda substantively slowly as Professor Kelsey has noted, but the procedure of how possibly there could be this rump negotiation on rules that would change the rights and obligations of members of an organization that has not had its procedures followed with respect to when rules can be changed is in itself procedurally perhaps equally damning with a substance. So the last round, before we open up for questions and answers would be around that is premised on what you think could actually foster the necessary changes. What can make any of what you think needs to happen for that marriage? Do you think that positive changes can be achieved in this institution? Or do you think we just need to start over or some combination? How do we get to a new model for international trade and where and how would that happen? And for this round, I have damn lost track of who should be first. So I’m going to just see Sophia smiling and say, Sophia Murphy.

 

Sophia Murphy 

Oh, well, there are worse ways to be singled out. So I think as a non-lawyer here, I’ll say, well, one, I think a multilateral organization promised on one country one vote, possibly without a consensus rule, as James has pointed to earlier some effective way of using your one country one vote if lots of possibilities that discusses trade is necessary. And for me, the record reinvented I’m not sure it would advance us unless we could do something about the politics of trade that a number of our governments not just from the north, but also some from the south bring to the table. And I think we, you know, we, whether we need to redo it or not, I’m not sure that I see. I think what we do need is to rethink the economics, the Uruguay Round locks and if you have economic Because that is out of touch at a date doesn’t match to what’s going on now didn’t really match to what was going on, then I think that we could do that there’s a lot of economic thought out there that would help us. And I think that although I disagree with some, for example, you know, there have been suggestions that we should go back to GAT rules for agriculture, I don’t know that that would either serve. But the GAT had this very important idea that you had multiple economic systems in operation, and you were trying to navigate among them. And I think that that kind of diversity in so an in practice would serve as well. I don’t think the multinational corporations are all that well served, frankly, by a completely dysfunctional trade body that nobody trusts. So I think for everyone’s sake, but also to be disrupting the concentrated power that neoliberalism has, has encouraged. We need a trade organization, it needs to be one country, one vote, and that needs to think hard about how to make that meaningful, because at the moment, it’s not, it’s not reflected in how decisions are made at WTO.

 

Lori Wallach 

Thank you very much important observation that the current paradigm probably doesn’t even suit Well, the entities and interests that shaped these rules in the first instance. I think there’s a mix on that. And so I see Jane bobbing her head with some question shrug. So I’m going to have Professor Kelsey, go next, please.

 

Jane Kelsey 

Well, there are idealistic ways that we could look at reforming the WTO. And a number of international civil society groups like Our World is Not for Sale have produced agendas for what an acceptable global body might look like. As I move into my retirement, I’m actually a little pessimistic and cynical, that institutions built around pillars of power will reform themselves. I think, in fact, the WTO’s dysfunction will continue to compound itself. And as you mentioned, Lori, the JSI’s, the plurilateral, which had no legality in the institution are a trigger point that I think is going to fracture even further, an organization that is imploding. And we have a session in a couple of days on the legality, which includes the South African ambassador to the WTO and Professor Dass from India. Talking about why, in fact, this is such an extraordinary step, to completely set aside the rules, and go and do your own thing with the complicity of the secretariat and now of the new director general. And when that is happening, I’m afraid I actually believe that consensus is important, because I think consensus is one of the very few tools that developing countries still have left in a WTO that has been again hijacked by interests that are not the interests embodied in the WTO is developmental key. And so I think this pathway that’s been embarked on since the MC 11 is another really serious nail in the coffin of the WTO. And then the challenge for us is, how do we actually make the kind of global rulemaking arena that we’ve been discussing?

 

Lori Wallach 

Thank you very much. We’ve got coffin nails and swallowed grenades. That’s not looking so optimistic for the WTO surviving its into its 30th year, Professor Gathii?

 

James Gathii 

Well, I’m not sure that I have anything very useful to add, especially after those two great insights, I think I just want to begin by thinking comparatively among the WTO and other international institutions or frameworks that are going through reform, and I think that every effort at reform is the moment for Rhian retrenching the problematic aspects of all these regimes, even in the best of times, for the WTO, it was built on a foundation that did not favor a certain interest and favored other interests. So for example, if you think about dispute settlement, if Barbados and Antigua won a case 20 plus years ago, it’s never going to be implemented because there’s no collective retaliation, embedded in the system of dispute settlement, is the market power of the countries that can be able to use the ultimate weapon of the system. If you think about the problem facing the fisheries subsidies, it’s because the ways that the SEM is written, it’s written in a way that it’s very difficult to discipline the subsidies that big countries give to the huge fleets, but very difficult for small countries to really benefit from the SCM. Because it bans almost it prohibits almost anything they might do. And you can go down the list of all the agreements. Now I’m teaching in my WTO course, this semester, national treatment, and the students are just amazed at how the competitive relationship between products is the sort of the rule that determines, you know, likeness, I mean, everything that is so foundational about the WTO is built on a very neoliberal vision that can’t, in my view, be reformed. There’s really no magic bullet, I think that the WTO, when it’s working well can provide, especially the poorer countries that are most concerned, the wiggle room to be able to push at the margins against some of the very adverse effects of the neoliberal agenda that is embedded within the WTO not even talking about digital trade, as we’ve been talking about. And, you know, Professor Kelsey, and Lori, you’ve been doing great work in that context. So I would say that the reason we would like the WTO to, to be really functional, is because it might at the margins be able to hopefully provide more leverage for these countries working collectively in a space, like we’ve seen before, when they fought over many years for access to medicines for HIV AIDS. And when they did the WTO, didn’t work, they dumped it and went to the w. h. o, and went to other places. And so I think, you know, it’s not really an answer, Lori, I don’t think there is a magic bullet. You know, I think that the structure, even in the best of worlds, while in the best of circumstances is highly problematic. But there is some need to make sure that it’s functional, because I think it provides, especially the poorer countries, a better space to try to discipline the neoliberal agenda and hopefully to turn it to the things that matter the environment and, and food and, and, and things like that.

 

Lori Wallach 

Thank you very much. So it is the perennial set of issues, the procedure and function issues and institutional issues, and the substantive rules issues, which inherently interrelate. And the questions that we’ve gotten from audience members basically, both hit both of those silos and the place where they intersect. So this is everyone’s turn now audience Q&A, and I think what I will do because we have some very interesting questions is I’m going to read a diversity of questions. And then I think we can do a round of answers and everyone can pick from the smorgasbord of whether they want to answer each answer one or two. And one of them which is for Professor Kelsey, do you think the current plurilateral negotiation the WTO, the JSI’s are illegal under WTO rules? We’ve heard her say no, but I do want to advertise that there is another panel I’m now hearing about this very matter. That is happening I think you said in two days so for the folks who want to know more about that, for it’s both legal but sounds like big political implications for the future of the institution with the South African ambassador, please tune in for those details. Some questions that I do not know are going to be answered in a future panel: Can the lack of meaningful agreements since the orbit around be attributed to the fact that no real convergence exists, perhaps can exist at all multilaterally between countries rather than there being structural issues in the WTO? Could Professor Gathii please explain why majority voting mechanisms were not used to settle the appellate body crisis as the appellate body appointments were blocked by just one number. A question that has come in a couple of different forms, what should be on the agenda or not for the upcoming ministerial? WTO ministerial starts November 30. And what must the WTO achieve in order to avoid permanent irrelevance? If that is still possible? And then, what do you make of the fact that in light of the WTO is dysfunction, rich and powerful states have resorted to plurilateral negotiations of new rules that again, prioritize corporate rights and profits expanding up the WTO is removed even further. Yet, we’ve already seen the collapse of the trading services agreement TISA of the Transatlantic Trade and Investment Partnership t tip we saw the TPP could not get through us congressional approval for the year after it was signed. And the US said, Oh, that pact and now we’ve seen India withdraw from the RCP, yet the WTO plows on in this same direction. So that is some of the smorgasbords that the audience has served up. And I’m gonna ask for a volunteer who would like to start?

 

James Gathii 

I can answer the question was asked about me, directed to me, I guess by Mohammed. So as some of you may know, I was nominated by Kenya and for the appellate body several years ago. And I guess that’s why this question was asked. of me. I think this is a question for the members rather than, for me, I can tell you what I understand happened. The like I said, the rules do require for normal consensus in the WTO. They do require voting when there is when there is no consensus. But really consensus means in the WTO, that in a normal consensus means that a member that even if a member opposes a particular decision, that they sit on their hands and not raise an objection to the making of that decision. Otherwise, that decision will consider to have been taken. The US has continued including the statement issued in the DSB meeting this month has continued to say that they have objections to the way in which the appellate body extended its authority in making certain decisions. In particular, the zero and controversies and many of them, I can tell you that in the context of the appellate body candidacy I was involved in candidate in writing requests for a vote to be taken. But that was also rejected. And so I think this is really sort of something that’s been going on for quite some time. It’s it’s not unique to myself, or it’s sort of affected many, many other people. And also many other important issues, including, more importantly, for me the COVID-19 in the context of the COVID-19 effort to get a waiver of the TRIPS agreement, so that more people can have access to the vaccine, especially the global south who have been disproportionately affected, but who have had that no similar access to this vaccine. So I mean, I guess that’s the response to that particular question.

 

Lori Wallach 

Thank you very much.

 

Sophia Murphy 

I couldn’t jump into say quickly, yes, lack of convergence as well as institutions. That’s true. And I think that’s partly because we don’t have it in a very different sense than Jane means. We don’t have a big enough agenda. Because especially OECD countries come thinking this is only about their commerce and only about their export interests. That emaciated view of trade, then makes it very difficult to find convergence with others. And then just to you know, who is not irrelevant. If you’re looking at agriculture before the WTO and after we had four or five companies dominating the grain trade, we had deeply misspent domestic support. We had widespread hunger, food insecurity, trade has always mattered, the rules matter. What’s wrong is that we can’t get agreement and move forward. So it’s not that the who is irrelevant, but it’s actually not blocking something that we need. And I don’t see another place to take it accepted. Those same governments, you know, maybe they behave differently in a different space. But, but though we would still need rules on agriculture, I’ll just leave it there. Well,

 

Jane Kelsey 

Well, to touch briefly on several of the other issues, but starting with the lack of meaningful convergence, there are promises that were made in 1995. about balance and about ensuring that the asymmetries that are endemic in north-south, however one defines them may be addressed. And that has proved to be a disingenuous promise. And so we have a trap. And I think James was referring to this in a different context, that developing countries are actually wanting to keep an organization that is not working for them functional, because as Sophia said, without it, then it’s even more of a law of the jungle. And that is a tragic situation. About the and I think we’re seeing that happening in the backlash against the various mega regionals that were feared to in that other question. And the collapse of TISA, the US withdrawal ironically, from the Trans-Pacific Partnership Agreement, because it didn’t do enough for the US. India’s withdrawal from the RC EP, the collapse of TTIP, and so on, the model itself is broken. But there is not a will to develop an alternative model there is instead this wobbly bicycle theory that you just have to keep riding the bicycle faster to make sure that it doesn’t fall over, even if it’s hitting to the cliff. So what should the ministerial be doing? If it is held, and my view is it shouldn’t be held because it cannot be held in an inclusive way in the current conditions in Geneva. It needs to be deferred. Again, the only urgent matter that the WTO has to deal with now is the pandemic. It has to deal with the waiver not just on medicines, but the waiver as broadly proposed. And it needs to address why those kinds of crises cannot be dealt with, except by various WTO members themselves invoking the national security exception, because they can’t address the crisis under the current rules. So if they’re going to talk about WTO reform, any WTO reform agenda has to start with dealing with those dysfunctions and not with the aggressive demands from those who already wield power in the institution.

 

Lori Wallach 

Thank you very much, Professor Kelsey, Professor Gathii, Sophia Murphy, those were all very insightful views of what should or shouldn’t happen. And we are audience running up to our last few moments. So I would like to take this opportunity to thank everybody for attending to thank again, our panelists for their many interesting and insightful views. This session has been recorded. So if you came late or want to send it to somebody, you can share it, appreciate enormously the challenges that this panel has underscored. And the prospects are not of the kind of changes be at the WTO or elsewhere that are needed to have rules for the global economy that actually work for most people. And certainly, I think I will leave us with that thought that Jane just had, which is the first step of reform is getting the hell out of the way in the face of a pandemic. So for all the countries who are going to be struggling with that ministerial declaration, having a trips waiver, excellent downpayment, I’m trying to make the WTO not be totally irrelevant, and trash bins. And all of the other issues that we’ll have to fall forward from that, of course, are enormous challenges that we’ll hear more discussion over the course of the next several days of the public forum. So please tune in our panelists. Thank you so much for your insights. audience. Thank you all. And with that, everybody, much appreciation and goodbye.