Angela Merkel's Kriegserklärung against America in its effort to to build consensus for a WTO vaccine waiver will come as no shock to those familiar with Germany's punitive moralism and gratuitous cruelty in the Greek debt crisis a few years back. But the chancellor's salvo raises an obvious question: what if the US loses the battle for agreement in Geneva?
One possibility: the US can step back, its global reputation enhanced by having fought the good fight, and focus on other issues. The WTO will have failed the test of "relevance" or "doing good" in today's world (expressions of USTR Katherine Tai). While keeping an open mind about efforts of others, the Administration never was that invested in making big changes to revitalize the WTO, at least of the kind that the EU, for instance, has been proposing-such as the ill-timed demand for tighter disciplines on subsidies at a moment when governments are spending flat out to prevent economic collapse from the pandemic. (On subidies reform, the US is supposedly in agreement with the EU in principle but is much more focused now on doing industrial policy as opposed to curbing it).
On the vaccine front, the Biden Administration would have a range of options, some more unilateral while others would focus on cooperation mechanisms such COVAX. Senator Elizabeth Warren, former professor at Harvard Law School, has long argued that the federal US government has sufficient legal authority to break patents where overriding public health concerns are at issue. She is probably referring to "march in" rights in the Bayh Dole Act, which allow the government to engage in compulsory licensing where federal funding has been involved in a patented innovation; one of the criteria is that "action is necessary to alleviate health or safety needs which are not reasonably satisfied by the contractor, assignee, or their licensees." The pandemic seems to be the test case for these provisions, which have so far not been applied, as I far as I can learn. I'm not an IP lawyer but I'm sure that any effort of the Administration to move in this direction for purposes of alleviating global needs would be heavily debated and litigated. As a non-expert on US IP law, I offer no view of who would win the court case, but I'm pretty sure that pharma won't prevail in the moral debate. Mobility of people is a major part of the spread of the virus, and so American "health and safety needs" are compromised if the rest of the world can't get reasonable access to vaccines. Once it has the intellectual property, the Administration can ensure it is freely available to any country or manufacturer that wants to move into production, and can do so safely and reliably. This solution isn't as comprehensive as a waiver, as it could only apply to those vaccines invented with US federal funding in the picture. Still, combined with US technical assistance, and help on ingredients, it could go fairly far.
But there is another choice-disruptive in its own way. The US could decide to push the WTO beyond its current consensus-based approach. Ambassador Tai has made it crystal clear that the US will try first for consensus in Geneva. But this pronouncement also sets the scene for the US if need be declaring at some point that a consensus "cannot" be reached and therefore that, in accordance with the terms of the WTO Agreement (Article IX:1), the matter at issue "shall" be decided by voting. Yes, "shall", not might or should. In this case (a waiver) a supermajority of 3/4 would be required. If there were any situation that could push the WTO beyond consensus decisionmaking , it would be the exceptional challenge of the pandemic, one shared by the peoples of all WTO Members. Since the consensus practice gives a veto that de facto will be most easily exercised by the major powers, breaking the practice almost certainly needs to be supported by a major power like the US (here India might be on board too). The nice thing about moving in this direction in the specific circumstances of the pandemic is that it could be presented as a truly unique recourse to unused but totally valid treaty provisions, thus as a limited & fully legal departure from custom, but also serving as a first tentative step in an institutional shift that might lead to faster, more successful negotiations at the WTO and increasing global relevance.
(Postscript: an important forthcoming article reconsidering consensus decisonmaking at the WTO is Claerwen O’Hara, ‘Consensus Decision-Making and Democratic Discourse in the General Agreement on Tariffs and Trade 1947 and World Trade Organisation’ (2021) 9(1) London Review of International Law.)
