#70 The G|O Briefing, September 14, 2021


This is an onsite, slightly edited republication of the complete G|O Briefing newsletter

Today in the Geneva Observer, on our weekly menu of ‘locally international’ sourced stories, against the background of the ongoing 48th session of the Human Rights Council, we put the emphasis on human rights and climate change.

Regular G|O contributor and human rights expert Peter Splinter calls on the Human Rights Council to stop dithering: “It is time for the membership of the UN Human Rights Council (HRC) to take climate change much more seriously than it has to date, and to treat the issue with the urgency, deliberation, and action that it demands. The HRC has tools at its disposal...and it should use them—now,” he writes.

After its August hiatus, the WTO once again took up the issue of waiving intellectual property rights on COVID-19 vaccines—aka the TRIPS Waiver—during an informal meeting of the WTO’s intellectual property committee. The meeting, reports Jamil Chade, left the waiver’s proponents somewhat frustrated, as no progress was achieved. However, it does appear that geostrategy and global politics may suddenly be about to give the idea a boost, and help to finally create a winning coalition that breaks the current deadlock.

Plus, in Elsewhere in The Ecosystem, we look at how the extreme politicization of the discussion around the Biden’s administration withdrawal from Afghanistan by some Republican senators is delaying long-awaited diplomatic nominations to International Geneva. It’s all below.

A short and inconclusive TRIPS Waiver meeting at the WTO…but there might be new momentum thanks to global politics and a renewed push by South Africa.

Last Tuesday (September 14, 2021), members of the WTO’s intellectual property committee resumed their discussion on the WTO response to COVID-19. It was an unusually short meeting, during which they mostly reiterated their well-known positions on the issue of temporarily waiving IP rights on COVID-19 vaccines—a proposal pushed by India and South Africa, and strongly opposed by the EU, the UK, and Switzerland.

The committee’s members restated their positions, and the meeting did not result in any significant narrowing of differences. South Africa reiterated the value of the waiver proposal to ensure rapid and equitable access to vaccines and other COVID-19 medical related goods, and called for immediate action. India shared its frustration at what it considers a waste of time in countering the arguments, presented by a few members at the TRIPS Council, that the waiver will not help to combat COVID-19. China also sided with the waiver proposal, but fell short of supporting the South Africa–India proposal in its current formulation.

New Zealand, Korea, the United States, and Brazil stressed the need to think outside the box to find a solution, with the US delegate arguing that efforts by WTO members have lost momentum and progress has stalled. With its ministerial conference two months away, the US insists the WTO needs to up its game to demonstrate its relevance in a time of global humanitarian and economic need. Its representative stressed, however, that the most important part of global efforts in fighting COVID-19 is increasing vaccine manufacturing capacity domestically and in other countries around the world– a position close to the industry’s. Some advocacy organizations are disappointed by the fact that the US has not taken a more active role and has so far refused to accept the draft proposal as is.

In opposing the waiver proposal, the European Union, the United Kingdom and Switzerland reiterated their view that the proposed waiver would not be the answer to the pandemic as it would not result in an increase in the production of COVID-19 vaccines. A waiver, they claim, might have a counterproductive effect on current efforts to enhance access, and possibly undermine ongoing collaborations—and may also have a dissuasive effect on future collaborations.

However, it appears that intense diplomatic pressure by the proponents of the waiver might eventually break the current deadlock. Some WTO watchers here speculate that Tuesday’s meeting was deliberately kept short as intense discussions are now happening at governmental level, in anticipation of the planned US-organized “Global COVID-19 Summit” which should take place in the margins of the 76th UN General Assembly which opened today (September 16, 2021). Several informed and reliable press reports—such as a long piece by our friends and colleagues at Health Policy Watch (HPW) and, in the US, in Politico—indicate that the dynamics of the discussion are changing. “Pressure is mounting on US President Joe Biden to provide global leadership to ensure equitable access to COVID-19 vaccines in the face of the European Commission’s refusal to support a waiver on intellectual property rights,” writes HPW.

Last Tuesday, during a public discussion hosted by Public Citizen (a public advocacy organization), Zane Dangor, a special advisor to South Africa’s foreign minister, urged Joe Biden and his administration to come up with a document that could be negotiated and finally agreed upon. In a surprise announcement back in May, the US announced its support for the TRIPS Waiver. “What we are asking now, is for President Biden to close the deal,” Democratic Congresswoman Jan Schakowsky said during the Public Citizen event.

“On the ground level here in Geneva, we haven’t seen the translation of the high-level [commitments by the Biden administration into] discussions that are currently happening. But I did detect a change of tone in the Australian position,” Thiru Balasubramaniam, an expert on the issue and Geneva Representative of NGO’s Knowledge Ecology International, told The Geneva Observer.

Balasubramaniam also remarked that a reinforced relationship between the ‘Quad’—a loose alliance between the US, Australia, India, and Japan—might be of significance, “now three of its members–the US, India, and Australia–support the idea of the waiver.”

While disappointed by the fact that the US has not been more active on the issue, Sangeeta Shashikant of the Third World Network, a global research and advocacy organization told In These Times that the US call for moving forward might be a sign of progress. “The US seems to be more active. Not much, but they’re saying a bit more than before,” she is quoted as saying.

Some WTO watchers also speculate that the UK, part of a new strategic alliance with the US and Australia (AUKUS), may change its stance on the issue as London seeks to cement its relationship with the US in the post-Brexit era.

Pressure is also increasing on Germany. Former heads of state, Nobel Laureates, and members of civil society have sent an open letter to the three candidates to replace Angela Merkel, urging them to support the TRIPS Waiver. Among the 140 signatories of the letter are former Swiss President Micheline Calmy-Rey and former British Prime Minister Gordon Brown. Both Switzerland and the UK currently oppose the waiver.

-JC,with additional reporting from PHM

Staying with the same issue, and the controversy it generates, a recent Italian study ( see below ) takes a long-term view of “Big Pharma and Monopoly Capitalism.” The authors (research economists at the Laboratory of Economics and Management in Pisa) essentially conclude that the commonly held belief about IP rights being an indispensable mechanism to foster innovation—Big Pharma’s supreme argument—is in fact much more nuanced.

“Taking stock of long-term empirical evidence from the pharmaceutical sector in the US, we can hardly support [the idea of] Intellectual Property Rights (IPR) as an innovation-rewarding institution. According to our analysis, pharma patents have constituted legal barriers protecting intellectual monopolies, rather than an incentive and a reward to innovative efforts,” the authors state.

The UN Human Rights Council Dithers While the Earth Burns

It is time for the membership of the UN Human Rights Council (HRC) to take climate change much more seriously than it has to date, and to treat the issue with the urgency, deliberation, and action that it demands. The HRC has tools at its disposal, some described below, and it should use them—now.

The Intergovernmental Panel on Climate Change report of 9 August 2021 has made clear beyond doubt the severity of the climate crisis attributable to greenhouse-gas emissions. “[T]he alarm bells are deafening,” according to António Guterres, UN Secretary-General, who has described the report as a “code red for humanity.” In 2019, the UN High Commissioner for Human Rights, Michelle Bachelet, was already speaking of a climate emergency, and her opening statement to the HRC’s 48th session described it as a “planetary crisis.” Since December 2016, over 1,900 governments in 34 countries have made climate emergency declarations. The gravity of the situation could not be clearer.

Emergency, meet bureaucracy

The HRC adopted its first resolution on climate change (Resolution 7/23) in 2008, at a time when the atmospheric concentration of carbon dioxide was 386.29 ppm. Thirteen years later on 14 July 2021, when it adopted its most recent resolution on climate change (47/24) the atmospheric concentration was 416.96 ppm. Resolution 47/24 asks the UN Secretary-General to report to the HRC at its 50th session on the adverse impact of climate change on the human rights of people in vulnerable situations, and calls for a related panel discussion at the same session. It also resolves to hold additional annual panel discussions, starting in 2023, on the adverse impacts of climate change on human rights, and encourages discussions on the possible creation of a new Special Procedure on climate change and human rights—hardly the stuff of emergency response!

Moreover, although resolution 47/24 uses boilerplate language to call on States to “consider [...] human rights within the framework of the United Nations Framework Convention on Climate Change,” it directs no message specifically to COP 26 in November 2021. A lost opportunity? Most definitely.

The HRC is mandated to respond promptly to human rights emergencies. There can be no reasonable doubt about the disastrous consequences of climate change for the enjoyment of many human rights—presently, and with worse certainly to come in the future. A debate that takes place once a year, even with a panel discussion, and results in a routine annual resolution is hardly the way to address the emergency. In the words of a former Special Rapporteur on extreme poverty and human rights, failure by human rights proponents to take concerted action will render them “marginal or irrelevant to humanity’s most pressing short-, medium-, and long-term challenge.”

The HRC has the capacity for action

Since 2008, the HRC resolutions have affirmed year after year that “human rights obligations and commitments have the potential to inform and strengthen international and national policymaking in the area of climate change, promoting policy coherence, legitimacy and sustainable outcomes.” It is essential to translate human rights principles and standards into practicable pragmatic measures that can provide that coherence, legitimacy and sustainability—without delay. The relevance of human rights to climate policy must be fully explored, understood and acted on.

So what could the HRC do? The often hidebound Council has demonstrated considerable imagination and innovation in continuing to function during the COVID-19 pandemic whilst other UN bodies almost ground to a halt—and that same creativity must be brought to addressing climate change. In the meantime, there are some measures that the Council could take consistent with established practices.

Making special sessions count

For a start, the Council could convene a special session devoted to developing a Council programme of action on climate change. A special session would allow for a more focussed and thorough discussion than is possible during regular Council sessions, when climate change must compete for attention with numerous other issues.

There is nothing to limit special sessions to country-specific situations. On 22 May 2008, the Council held a special session on the world food crisis, and on 20 February 2009, it held another on the global economic and financial crises, so there is no reason why sixteen members of the Council could not request the convening of a thematic special session devoted to climate change. Russia, China, India, Eritrea and other countries that have recently shown resistance to the discussion of the topic by the Council would not be able to block such an initiative.

To ensure it is productive, the necessary time should be taken to prepare for a special session. The applicable HRC rule says that, in principle, a special session should be held not earlier than two and not later than five working days after the formal receipt of the request for the session. Five days are clearly not enough, but precedent for a longer preparation can be found in the Council’s special session on the world food crisis, which was held eleven working days after being requested. Moreover, with the constructive creativeness that has characterised the Council during the pandemic, ways can surely be found to allow for proper preparation of a session on climate change.

Other tools at the HRC’s disposal

The HRC could also ask its ‘think tank’, the Advisory Committee, to do much-needed groundwork on the effect of climate change on human rights. To date the Council has not asked the Committee to work on climate change, and hence the Committee—which can only act at the request of the Council—has yet to report on the topic. (In August 2015 the Committee considered a reflection paper on climate-induced displacement, but did not take the topic any further, and in March 2021 it proposed a study on climate geo-engineering which awaits the Council’s response.)

A third area where the HRC could make a difference is through the creation of a new Special Procedure dedicated to human rights and climate change. NGOs first proposed the creation of such a mandate in 2010, and it was discussed more recently in connection with resolution 47/24, but the proposal is in abeyance, following obstruction from Russia, India, and other countries.

Although many of the existing thematic Special Procedures have, in fact, examined particular aspects of climate change, each has a broad subject-specific remit that prevents them from giving sustained attention to the relationship between human rights and climate change. A Special Procedure devoted to the issue is needed for continuity, coherence and profile. Furthermore, while discussion about the creation of a Special Procedure has thus far focussed on the establishment of a Special Rapporteur, this topic is simply too large and too complex for any single expert. A working group, consisting of five experts drawn from each of the UN’s five regions, would be the better option, allowing for a broader range of legal and technical expertise as well as sensitivity to regional particularities. That model was followed for the Working Group on discrimination against women and girls.

The mandate of any new Special Procedure must go well beyond identifying how climate change adversely affects the enjoyment of many human rights. The mandate should be forward-looking, pragmatic and focused on action: specifically how to ensure that climate change mitigation and adaptation measures respect, protect and fulfill human rights.
There are, no doubt, additional ways that the Human Rights Council could begin to respond to the climate emergency. But what matters most is that it acts—now—with a sense of urgency, deliberation, and pragmatism. The time for dithering is over.



Hysterical partisan politics in the US are having a direct effect on International Geneva

The nomination of Bathsheba Nell Crocker as the new US Ambassador to the UN and Other International Organizations in Geneva was sent for confirmation to the Senate in early July. Her Senate confirmation—one among several other State and Treasury nominees—has already been held up by Republican Senator Ted Cruz from Texas, a potential presidential candidate for 2024. Cruz had announced in the past he would not proceed with the nominations until the Biden administration imposes sanctions on the Nord Stream II pipeline (which will, if approved, supply Germany with Russian gas).

In addition, the nominations are now being held hostage over the decision of the Biden administration to have withdrawn from Afghanistan—a subject, no doubt, with ample room for a spirited debate in the US and around the world. Senator Josh Hawley—a Trump supporter and defender of the January 6 assault on the US Capitol—has simply declared in a speech on the Senate floor on Tuesday (September 14, 2021) that he would hold up Biden’s nominees until US Secretary of State Antony Blinken, National Security Adviser Jake Sullivan, and Defense Secretary Lloyd Austin all resign.

Most likely Cruz and Hawley and a few other fellow Republican Senators alone won’t be able to block nominees or derail a confirmation process that relies on a simple majority of votes. But the process will inevitably be further delayed, and Geneva will be kept waiting.

Today's Briefing: Philippe Mottaz - Jamil Chade

Editorial Assistance: Ciara O'Donoghue

Guest essay: Peter Splinter

Edited by: Dan Wheeler