UN-LDC5: Draft outcome document undermines rights & demands of LDCs

Negotiations are advancing swiftly to conclude the draft "Doha Programme of Action for Least Developed Countries", which has evolved into a strikingly weakened outcome document, said sources familiar with the development.

The draft Doha Programme of Action (DPOA) for the decade 2022-2031 will be adopted by the upcoming Fifth United Nations Conference on the Least Developed Countries (LDC5), scheduled for 23-27 January 2022 in Doha, Qatar, at the Heads of State/Government level.

The latest third revision (Rev-3) of the draft DPOA was released to Member States only on 10 December by the LDC5 Preparatory Committee Co-Chairs Ambassadors Rabab Fatima (Bangladesh) and Robert Keith Rae (Canada).

"We hope that the draft will be acceptable to all", reads the Co-Chairs' accompanying letter, further notifying that "the draft will be placed under silence procedure on Monday, 13 December 2021, COB".

[Under the silence procedure, if a Member State supports the draft text it does nothing - i.e., silence means consent. If it opposes the draft text, then it sends an email to object, essentially "breaking silence" - under the procedure that emerged in the UN during the COVID-19 pandemic, only one objection from any Member State is needed to stop the adoption of the draft text].

The Co-Chairs' letter also informs that "pursuant to General Assembly decision 75/574, a final meeting of the Preparatory Committee will be convened on Friday, 17 December 2021, to consider the draft Programme of Action, with a view to recommending its adoption at the Fifth United Nations Conference on the Least Developed Countries (Doha, 23-27 January 2022)".

The restricted (not public) draft Rev-3 DPOA text, viewed by the Third World Network (TWN), has evolved into a more diluted version of the previous iteration (restricted second revision, Rev-2 released on 6 December by the Co-Chairs), thus undermining basic, minimum demands and rights of the LDCs especially against the backdrop of the crippling COVID-19 pandemic.

From the outset of negotiations since July, one of the key demands by the LDCs was consideration of its proposal (WT/GC/W/807) on "Trade Related Challenges of the Least Developed Countries and Way Forward" which calls for a meaningful "smooth transition" towards enabling effective sustainable graduation.

[The proposal WT/GC/W/807 was submitted by the LDCs in November 2020, at the World Trade Organization (WTO). The proposal's draft decision, in response to previous UN resolutions on "smooth transition" of graduating LDCs, calls for continued support measures of special and differential treatment and exemptions, as well as LDC-specific technical assistance and capacity building and any other relevant measure in favour of LDCs, for a period of twelve years to countries graduating from the LDC category.]

The current draft Rev-3 DPOA text no longer contains any language on the smooth transition proposal, which makes a mockery of one of the six key focus areas of the DPOA, namely, "VI. Mobilizing international solidarity, reinvigorated global partnerships and innovative tools - A march towards sustainable graduation". The relevant section with one of its key action areas being "extension of international support measures to graduating and graduated least developed countries to make graduation sustainable and irreversible" is rendered toothless as a result.

Such an apparent rejection of the LDCs' minimal demand to enable their sustainable graduation clearly exposes the lack of political will, and even lack of good faith, of developed countries in the negotiations.

According to those familiar with the discussions, the European Union, in particular, pushed with their "red line" to drop the related language altogether.

The weak compromise language that is not operational now appears in Paragraphs 163 and 280 of the draft Rev-3 DPOA text as follows: "We take note that the LDC group put forward various proposals at the WTO, pertaining to, among other things, trade-related challenges as well as those related to smooth transition of the countries graduating from the LDC category, and seek to further examine these issues".

It must be noted that the LDCs had been defending this key specific demand, among other sticky issues, since their zero-draft of the DPOA submitted in July that kick-started the negotiations. [See https://twn.my/title2/unsd/2021/unsd210803.htm]

The other notable omission in the draft Rev-3 DPOA text is any language on the TRIPS waiver proposal (IP/C/W/669/Rev.1), a crucial and urgent need-of-the-hour initiative at the WTO that is co-sponsored by the LDC Group and supported by the majority of the developing countries.

[The proposal first submitted in October 2020 seeks a temporary waiver from certain provisions of the WTO's Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), namely, patents, trade secrets, copyright and industrial designs, in relation to the containment, prevention and treatment of COVID-19.]

The proposal language which had survived until the first revision (Rev-1) of the DPOA text in Paragraph 210 was completely dropped in the next restricted Rev-2 DPOA text released on 6 December by the Co-Chairs.

The replaced language is problematic which "reaffirms" the TRIPS Agreement as "amended", the latter referring to the Article 31bis amendment which has not been basically of any productive use to date.

Several civil society organisations (CSOs) engaged in the LDC5 process wrote a letter to the Chair of the LDC Group (Malawi) on 9 December, underlining that "an urgent decision on the waiver is long overdue" and "warranted especially given the evolving COVID-19 situation of new variants and consequent additional burden to fight the pandemic in LDCs".

The signatories included TWN, Social Watch, LDC Watch, Development Alternatives with Women for a New Era (DAWN) and Asian Peoples Movement on Debt and Development (APMDD).

The CSO letter alerted that "a placeholder on the TRIPS waiver is absolutely needed", further raising deep concern over the overall diluted version of the Rev-2 DPOA text including the proposed process by the Co-Chairs to put forward the final text under the "silence procedure" on 9 December.

"We would like to caution against this, especially since there are considerable gaps and worrisome text that undermine the rights and interests of the LDCs", stressed the letter, while also emphasizing that the smooth transition proposal "needs to be secured for effective post-graduation smooth transition".

However, the restricted draft Rev-3 DPOA text that went to Member States the next day on 10 December was disappointingly more watered down than its predecessor, with language on the smooth transition proposal dropped, as well as no reinstatement of the TRIPS waiver proposal.

The other fundamental rights of the LDCs undermined by the current draft Rev-3 DPOA text are especially in relation to technology transfer and intellectual property (IP), among other issues.

On technology transfer (an obligation of developed countries under Article 66.2 of the TRIPS Agreement), the current text entirely states it on "mutually agreed terms" while Paragraph 59 particularly mentions "voluntary" transfer.

On IP, LDCs are not required to provide IP protection as they have TRIPS transition periods. However, certain text such as Paragraphs 104, 110, and 117bis promotes the opposite in contradiction to their IP flexibilities.

Further, LDCs are not required to liberalise in the current Doha Development Round of negotiations at the WTO; however, some draft Rev-3 DPOA text implies total liberalization of services and investment sectors which is against the interests of the LDCs.

The Rev-3 text also contains inconsistencies with already agreed language such as that in the decisions of the recent 26th meeting of the Conference of Parties (COP26) of the UN Framework Convention on Climate Change, and of the Green Climate Fund (GCF).

Paragraph 226 contains new language, i.e. "Increasing financing for nature-based solutions for climate mitigation and adaptation" where "nature-based solutions" as a concept is not yet multilaterally defined and was also not agreed at COP26.

As regards GCF decisions, Paragraph 229 only mentions "grants equivalent basis" whereas Paragraph 54 of the GCF's Governing Instrument states grants and concessional loans in relation to forms of financing by the Fund.

TWN's analysis of the draft Rev-3 DPOA text further points out glaring gaps and weaknesses in the finance section, for instance, lack of mention of the need for a UN Global Tax Body to address international tax cooperation as well as of fiscal austerity, privatization and regressive taxation measures attached to loans and project financing from the International Monetary Fund (IMF) and World Bank, which is directly constraining the ability of LDCs to recover from the multiple shocks of COVID-19.

The uncritical inclusion of "blended finance" is also concerning; given that there is little to no empirical evidence that blended finance meaningfully contributes to effective sustainable development financing with respect to national policy space and decision-making.

In the debt section, a clear language on "private creditors", which is missing, is necessary as this is an increasing source of sovereign debt. The draft Rev-3 DPOA text undoubtedly falls far short of "a new generation of renewed and strengthened commitments" as it claims to be, offering little that is substantive to the LDCs for the next decade, especially in light of their structural transformation and sustainable graduation which is supposed to be the cornerstone of the DPOA.

It will be mere rhetoric and disservice by the developed countries if indeed such an empty, regressive outcome document is adopted by the LDC5 Conference in Doha in January 2022.

By Prerna Bomzan.

Source: South-North Development Monitor (SUNS) #9480 Tuesday 14 December 2021.