TWN Info Service on Health Issues (Jan21/09)
29 January 2021
Third World Network

“Global approach” based on TRIPS waiver needed to combat Covid-19
Published in SUNS #9274 dated 29 January 2021

Geneva, 28 Jan (D. Ravi Kanth) – Many countries at the World Trade Organization (WTO) have recognized the importance of a TRIPS waiver in combating the COVID-19 pandemic, especially the need to find a “global approach” for ramping up production of pandemic-specific medicines and vaccines on a global scale to avoid ongoing vaccine wars, negotiators told the SUNS.

However, a few opponents to the waiver – the United States, the European Union, Japan, and Switzerland among others – have continued to adopt their “diversionary” tactics on grounds that the proponents must offer more evidence as to why they cannot avail themselves of the existing flexibilities in the TRIPS Agreement, negotiators told the SUNS.

The chair of the WTO’s TRIPS Council, Ambassador Xolelwa Mlumbi-Peter from South Africa, convened a small group meeting of more than 15 countries on 27 January to discuss the way forward based on three questions she had circulated ahead of the meeting.

The members who attended the small group meeting included the United States, the European Union, Japan, Canada, Switzerland, Australia, India, South Africa, Pakistan, Jamaica, Egypt, Malaysia, Indonesia, and Venezuela among others.

The chair informed members that “the purpose of the meeting is to hear the delegation’s views on the TRIPS waiver request, and on how to best advance the consideration of this request going forward.”

The chair posed three questions for members to consider during the meeting. The questions include:

(1) In your delegation’s view, which elements of the Waiver are critical to deliver a multilateral solution on the common objective of ensuring swift, timely, affordable and equitable access to the vaccines and therapeutics to combat the COVID-19 pandemic?

(2) Has the discussion provided clarifications about core elements of the TRIPS Agreement in relation to public health? How can these be captured to establish a common understanding?

(3) What is your delegation’s view on the timing and format of deliberations towards a report to the GC (General Council) as communicated by the TRIPS Council in December 2020?

The proponents of the TRIPS waiver – South Africa, India, Pakistan and several other countries – laid out their case during the small group meeting, saying that the time has come for the WTO members to collectively work towards the adoption of the waiver, said participants, who asked not to be quoted.

The TRIPS waiver calls for the temporary suspension of several provisions in the WTO’s TRIPS Agreement relating to copyrights, industrial designs, patents, and protection of undisclosed information for combating the pandemic by ramping up production of medicines and vaccines on an expeditious basis.

Amidst the worsening vaccines war between the European Union and Britain over the failure of AstraZeneca to comply with its contractual obligations to supply vaccines to the EU member countries and the sudden spike in COVID-19 deaths of more than 2.1 million people globally, South Africa and India called for a global approach as the current situation of alarming shortages, as well as production and distributional problems globally is a “direct result of the inappropriate application of monopolistic IP (intellectual property rights),” said a participant, who asked not to be quoted.

At the small group meeting, the South African delegate, Mr Mustaqeem Da Gama, apparently said that members “need to define a global solution, as the COVID-19 requires a global approach as the current TRIPS Agreement only speaks of addressing specific IP problems being faced by one member or the other,” the participant said.

The TRIPS flexibilities are not adequate and cannot address a global health crisis arising from the COVID-19 pandemic, which was the worst pandemic over the past 100 years, the participant said.

India’s trade envoy Ambassador Brajendra Navnit emphasized that the COVID-19 can only be tackled through a “global approach” based on the TRIPS waiver, suggesting that the proponents have systematically addressed dozens of questions raised by the opponents, said another participant, who asked not to be quoted.

The proponents said that “the very countries that are advocating IP flexibilities and their generous donation of funds for the COVAX facility must recognize that none of these two options have worked satisfactorily to address the COVID-19 pandemic that started more than a year ago,” the participant said.

The proponents argued forcefully that they have provided substantial evidence as to why IPRs continued to remain as barriers and why there is an urgent need to temporarily suspend several provisions of the TRIPS Agreement relating to copyrights, industrial designs, patents, and protection of undisclosed information to ramp up production of medicines and vaccines across countries, the participant said.

In response, some opponents said that they are open to discussions on the waiver, suggesting that they are still evaluating the evidence provided by the proponents.

The opponents said that they may consider “what goes into the Chair’s recommendation to the General Council meeting that will be held next month,” the participant said.

However, the proponents cautioned that it is premature to consider the chair’s recommendation at this juncture when members need to finalize a global approach based on the waiver proposal, said another participant, who asked not to be quoted.

On the proponents’ demand for text-based negotiations following the last three months of discussions and clarifications, the opponents led by the United States opposed text-based negotiations as they are still studying the evidence, the participant added.

The opponents said that the evidence provided by the proponents about the specific problems arising from the implementation of copyrights, industrial designs, patents, and protection of undisclosed information does not provide that IP is a barrier, said another participant who asked not to be quoted.

“You can give them the world and they will continue to say that it is not enough,” the participant said, suggesting that the opponents are “adopting diversionary tactics of raising questions upon questions and when you give them the answers they will say that you did not give the answer.”

Japan, for example, said at the meeting that the waiver will destroy the IP system, nor will it create productive capacity for manufacturing medicines and vaccines, the participant said.

Canada said it is important to continue the discussions on the waiver proposal, suggesting that more evidence is needed to take a decision on the waiver, the participant said.

In sharp reply, India’s trade envoy apparently told Canada that the opponents choose to remain “blind” to the evidence provided by the proponents, suggesting that the evidence is everywhere, including the tit-for-tat vaccine wars, the participant said.

The US said that they recognize the problem that was raised by the proponents, but maintained that IPRs are not the barriers for addressing the COVID-19 pandemic, the participant said.

In short, “while recognizing the salient features of the TRIPS waiver, a few opponents are continuing to undermine efforts for text-based negotiations,” the participant said.

Meanwhile, the vaccines war between the European Union and the United Kingdom over AstraZeneca’s coronavirus vaccine supplies became more entrenched on 28 January after Brussels voiced concerns over the company’s “continued lack of clarity” on its delivery schedule.

Talks between the EU and AstraZeneca late on 27 January failed to “resolve the dispute over whether the company should deliver tens of millions of more doses to the EU than it plans to over the first three months of the year,” according to a report in the Financial Times (FT) on 28 January.

“The negotiations came after a dramatic escalation of the spat on Wednesday, when the European Commission said AstraZeneca must use production from its US plants to make more deliveries to the EU,” while “the company insists that its contract with the European bloc does not bind it to stick to its original delivery schedule, but only to make its “best effort” to do so,” the FT report said.

The EU health commissioner Stella Kyriakides said on 27 January that the European bloc remained “united and firm” in its belief that “contractual obligations must be met.”

The ongoing vaccine wars have only vindicated the proponents’ arguments that there is an urgent need for the TRIPS waiver to overcome the problems of shortages of vaccines and to ramp up production across countries through the implementation of the waiver to provide requisite medicines and vaccines equitably to small and big countries.