H I G H L I G H T S
• TRIPS waiver proposal gains outside support but remains stalled at the
• OPCW suspends rights and privileges of Syria
• Leaders summit sets tone for higher climate ambition at CoP 26
• Roadmap for return to compliance with JCPOA under preparation
• UNSG unable to find common ground to revive Cyprus talks
• ICJ observes quiet 75th anniversary
TRIPS waiver proposal gains outside support but remains stalled at the WTO
The proposal submitted by India & South Africa to the Trade-Related Aspects of Intellectual Property Rights (TRIPS) Council of the World Trade Organization (WTO) for waiver from provisions of the TRIPS Agreement last October (see UNCovered November 2020 ) received a boost with support from civil society in April. A group of 175 former heads of state and government and Nobel prize winners signed an open letter to US President Biden in support of the WTO waiver. They called on the US President to support the waiver as, “a vital and necessary step to bringing an end to this pandemic.” Also, several prominent Democrats, including Senators Bernie Sanders and Elizabeth Warren expressed support for the waiver.
Even as Covid-19 claimed more than three million victims globally, the discussions during April in various formats at the WTO remained deadlocked. The waiver proposal has gained the co-sponsorship of sixty states and is assessed to have the support of more than a hundred states. Yet differences remain. The group of states who have opposed the proposal – primarily the EU, UK, Japan, Switzerland and Canada – have stuck to their positions in consultations held during the month, arguing that the waiver would undermine intellectual property rights and innovation, hence was a “no-go” area for them. The Biden Administration has been more nuanced, in comparison with the Trump Administration. It acknowledges that “in cases of national emergency or extreme urgency, when cases of public non-commercial use, members may waive the requirement to seek prior authorization from the patent holder,” but adds that it is also hearing about the hurdles in this process and hence is “evaluating the proposal from the perspective of its true potential to saving lives”. The WTO consultations are chaired by Ambassador Dagfinn Sorli from Norway (which had objected to the proposal when it was submitted last year). He proposes to have further consultations to explore whether a “possible landing zone” could be found for the TRIPS waiver proposal and will report to the TRIPS Council in early May.
Comment: The Biden Administration holds the key to any progress on the waiver proposal. Given the importance of the issue, Prime Minister Modi also raised the matter in a recent telephonic conversation with the US President. The new US Trade Representative (USTR) Katherine Tai is reported to have discussed the issue with pharma companies, trade unions, advocacy groups and the UN-backed vaccine alliance Gavi. As part of the policy debate in the US concerns have been raised that the waiver of intellectual property rights could allow China and Russia to exploit platforms such as mRNA, which could be used for other vaccines or even therapeutics for conditions such as cancer and heart problems in the future. The USTR emphasizes that the US was “working with global partners to explore pragmatic and effective steps to surge the production and equitable distribution of vaccines”. What form that will take will determine the fate of the waiver proposal that has long meandered at the WTO.
OPCW suspends rights and privileges of Syria
In an unprecedented move, the twenty-fifth session of the Conference of the States Parties to the Chemical Weapons Convention (CWC) meeting at The Hague adopted a Decision to suspend the rights and privileges of the Syrian Arab Republic under the Convention. These included: a) to vote in the Conference and the Council; b) to stand for election to the Council; and c) to hold any office of the Conference, the Council, or any subsidiary organs. 87 states voted in favor of suspending Syria’s rights and 15 voted against. Including India, 34 states abstained. The restrictions will remain in place until the Organization for the Prohibition of Chemical Weapons (OPCW) Director General reports that Syria has resolved all of the outstanding issues regarding its declaration of its chemical weapons stockpile and programme.
The move initiated by 46 states, follows the publication of the second report of the OPCW Investigation and Identification Team (IIT) earlier in the month, concluding that there are reasonable grounds to believe that the Syrian Air Force dropped a chlorine cylinder on a part of the city of Saraqib, on 4 February 2018. A similar conclusion was earlier reached in April 2020 in the first report of the IIT that the Syrian Air Force had used chemical weapons including chlorine and the nerve agent sarin on the town of Ltamenah, three times in March 2017. Syria then did not comply with a 90-day deadline by the OPCW’s Executive Council to declare the weapons used in the attacks and reveal its remaining stocks.
Comment: This rather symbolic decision is the latest round in the ongoing tussle between Syria and western states who contend that Syria has continued to use chemical weapons years after it renounced the use of chemical weapons and surrendered its past stockpiles for destruction after joining the OPCW in 2013. Syria dismisses these as false-flag chemical attacks on the country’s soil, staged by foreign-backed elements bidding to pressure the government amid army advances. It views the IIT as a “propaganda tool” and argues that IIT reports cannot be considered scientific as they do not adopt rigorous standards for collecting evidence. In this it is backed by Russia and China. In short, the geo- political divide that plagued the issue at the Security Council also plays out at the OPCW.
Leaders summit sets tone for higher climate ambition at CoP 26
US President Biden’s Leaders Summit which brought together 40 Heads of State and Government (including all the G-20 members) virtually on 22-23 April, set the tone for new and enhanced nationally determined contributions (NDCs) to be submitted under the Paris Agreement. NDCs are to be provided in time for the 26th Conference of Parties (CoP 26) of the United Nations Framework Convention on Climate Change (UNFCCC) to be held in Glasgow in November 2021.
The significant announcements were:
- United States submitted a new NDC target of a 50-52% reduction below 2005 levels in 2030 which is a significant advance on the commitment made by Barack Obama.
- Japan announced a cut of emissions to 46-50% below 2013 levels by 2030, with strong efforts toward achieving a 50% reduction, a significant acceleration from its existing 26% reduction goal.
- Canada committed to strengthen its NDC to a 40-45% reduction from 2005 levels by 2030, a significant increase over its previous target to reduce emissions 30% below 2005 levels by 2030.
- Brazil committed to achieve net zero by 2050 an improvement of the target date of 2060 set a few months ago, and promised to end illegal deforestation by 2030.
- South Africa announced intention to strengthen its NDC and shift its intended emissions peak year ten years earlier to 2025.
- Republic of Korea committed to terminating public overseas coal financing and strengthening of its NDC to be consistent with its 2050 net zero goal.
- India announced the launch of the “U.S.-India 2030 Climate and Clean Energy Agenda 2030 Partnership” to mobilize finance and speed clean energy innovation and deployment this decade.
- China expressed intention to strictly control coal-fired power generation projects, and phase down coal consumption.
According to an initial assessment by the independent think tank, Climate Action Tracker, the impact of the Leaders Summit along with all the new climate targets announced since last September, is that the emissions gap in meeting the 1.5 C goal has closed by 12-14% (2.6-3.7 2.6-3.7 GtCO2e). The major contributions thus far come from the US, the EU+UK, China and Japan.
Roadmap for return to compliance with JCPOA under preparation
The effort to put the three month diplomatic space made available by the “temporary bilateral technical understanding” between Iran and the International Atomic Energy Agency (IAEA) (See UNCovered February 2020) to good use began in the first week of April in Vienna, with talks amongst the signatories of the 2015 ‘Iran nuclear deal’ known as the Joint Comprehensive Program of Action (JCPOA). The objective is to create a road map for a synchronized return of the USA and Iran to compliance with the 2015 deal, before the presently available diplomatic space ends in the latter half of May.
The indirect talks, whereby the rest of the JCPOA signatories (EU, France, Germany, UK, China and Russia) engage with the US and Iran separately (on account of Iran’s unwillingness to engage with the US directly), have made some progress. Following high level discussions, working groups have been set up to address issues relating to US sanctions, Iranian compliance and ‘possible sequencing’ of US return to the JCPOA.
According to a reliable media report, it is understood that the US is willing to remove sanctions which it deems are inconsistent with the nuclear deal or that deny Iran the relief it would be entitled to should it return to compliance with the accord. However, the US and Iran differ on which sanctions should be removed. It is estimated that there are more than 1500 sanctions imposed by the US against Iran and that the US could end about 800 US sanctions. There is also said to have been progress on Iran’s path toward compliance with the 2015 agreement. It has narrowed to what to do with Iran’s stockpile of enriched uranium, and what happens to the advanced centrifuges Iran has installed to generate nuclear fuel more quickly. Negotiators are said to have begun drafting texts of potential agreements for further discussion in forthcoming meetings.
The ongoing talks have, during the course of the month, survived several adverse developments. These include an attack at the Iranian nuclear site of Natanz suspected to have been carried out by Israel, Iran’s retaliatory measure of enriching a small amount of uranium up to 60%, the highest ever by it, and the damaging revelations that undermine the standing of Iranian Foreign Minister Javad Zarif, the key Iranian interlocutor of the JCPOA.
Comment: This engagement of the JCPOA signatories reflects willingness of all of them to seek a diplomatic outcome on this issue by working “in concert” despite their differences on other matters. The continuance of the talks despite many distractions is a good augury. Reports refer to the progress made in the negotiations but there is still a long way to go and the compulsions of domestic politics in US and Iran add to the uncertainties of the outcome. If satisfactory outcomes are reached, only then will this “concert of states” approach international organizations to come into the picture as platforms for legal validation and for verification of the implementation of agreed outcomes.
UNSG unable to find common ground to revive Cyprus talks
The United Nations Secretary General (UNSG) Antonio Guterres convened an informal meeting on 27-29 April in Geneva to determine whether common ground exists for the parties to the dispute to negotiate a lasting solution to the Cyprus issue. The talks were attended by the Greek Cypriot and Turkish Cypriot leaders along with the Foreign Ministers of Greece, Turkey and the UK – all guarantor powers of Cyprus that agreed to the island’s independence in 1960 and have historically featured in discussions over next steps.
In a media briefing following the so called “5+1” (parties to the dispute, guarantor powers and UN) talks, the UNSG acknowledged “we have not yet found enough common ground to allow for the resumption of formal negotiations in relation to the settlement of the Cyprus problem” but added that he hoped to convene another meeting in two to three months.
UN engagement with Cyprus dates back to 1964, when the UN Peacekeeping Force in Cyprus (UNFICYP) was established to prevent further fighting between the Greek Cypriot and Turkish Cypriot communities and bring about a return to normal conditions. The mandate was further expanded in 1974, following a coup d’etat by elements favouring union with Greece and subsequent military intervention by Turkey, whose troops established control over the northern part of the island. Cyprus remains on the active agenda of the Security Council with regular consideration and extensions of peacekeeping mandates at six monthly intervals, the last of which was in January 2021.
The UN bid to revive the Cyprus negotiations failed to make headway as the newly elected Turkish Cypriot leader Ersin Tatar insisted on a fully sovereign Turkish Cypriot state loosely associated with the internationally recognized government of Cyprus as the basis for formal negotiations. Supported by Turkey he emphasized that talks on the future of Cyprus were “meaningless” without the recognition of sovereign equality of both sides. His view was that the Turkish Cypriots would not accept minority status in a Greek Cypriot-ruled federation. The talks could only resume if the Greek Cypriots agreed to these terms. This was fundamentally different from the two zone federation that had been agreed in principle by both sides in the past and that underpins the UNSG’s mandate as approved by the Security Council. President Anastasiades of the internationally recognized Cyprus government who led the Greek Cypriot side was of the view that negotiations should resume from where they left off four years ago and “aim to achieve a settlement based on a bi-zonal, bi-communal federation.” The gulf between the two positions was too far to bridge.
Comment: The Cyprus issue has for long been seen at the UN as one which is amenable to a UN-brokered solution. In the middle of the last decade, it was viewed as “a low hanging fruit” ripe for a solution. When Antonio Guterres took over in 2017, he sought to mediate a solution to the Cyprus issue as part of his “surge for diplomacy” but did not meet with success. The inability of the current effort (which comes as he seeks re-election later this year) to make headway reflects the continued difficulties that the UN attempts to facilitate solutions to long-festering conflicts face.
ICJ observes quiet 75th anniversary
The principal judicial organ of the United Nations, the International Court of Justice (ICJ), located at the Peace Palace in The Hague observed its 75th anniversary without any fanfare. In view of the pandemic, the ICJ postponed the planned solemn sitting to mark its first sitting on 18th April 1946 until such time as it can be held in a safe and fitting manner. Instead, the President of the Court, Judge Joan E. Donoghue, made a statement commemorating the occasion.
The ICJ with 15 judges (including Judge Dalveer Bhandari of India) is governed by its Statute which forms an integral part of the UN Charter. Judge Donoghue aptly described it as, ambitious in certain respects, but also circumspect. The Court’s jurisdiction depends on the consent of States. The Statute does not dictate the content of international law. Instead, it establishes a standing and permanent forum for the settlement of inter-State disputes. Thus far, 140 inter-state disputes have been pronounced upon by the ICJ. In addition, in a further 25 cases the ICJ offered its Advisory Opinion brought by UN organs and specialized agencies. There are 14 pending inter-state cases which have to be decided upon.
Comment: Despite the passage of 75 years, the ICJ remains in some aspects largely a “conventional” institution, with very few of the counsel appearing before it coming from developing countries and almost all, regardless of nationality, are men. Nevertheless, in terms of jurisprudence it has traversed new areas – including scientific and technical aspects of environmental disputes as well as interpretation of a number of human rights treaties. Aspects of outer space law and discussions about the legal framework applicable to many aspects of the cyber space are now seen as possible growth areas. These are issues that the drafters of the Court’s Statute did not envision 75 years ago. The ability of the ICJ to progressively address such matters reflects its adaptability and bodes well for its continuing relevance in matters of international law.
(The views expressed are personal)