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Info Service on Intellectual Property Issues (Nov21/05) Geneva, 19 Nov (D. Ravi Kanth) – Several members, including India, have severely criticized the WTO Secretariat on its latest circular relating to COVID-19 that could make things very difficult for trade ministers and senior officials from the Global South to attend the WTO’s 12th ministerial conference (MC12) set to begin in Geneva on 30 November, in what people likened to “vaccine apartheid at the WTO ministerial conference.” On two other developments at the WTO, namely, the WTO’s response to the pandemic, and the current stalemate on the TRIPS waiver proposal, temperatures appear to be rising on account of the alleged “threatening” postures adopted by the General Council-appointed facilitator, Ambassador David Walker from New Zealand, who is leading the process on finding a multilateral and horizontal response to the pandemic, said people familiar with the development. WTO CIRCULAR ON COVID-19 During the second information meeting on 18 November on the logistical arrangements for MC12, several members lambasted the WTO Secretariat on its controversial circular issued on 16 November. That circular suggested that participants who are vaccinated with only the recognized vaccines approved by the European Medicines Agency (EMA) are eligible for applying for the Swiss COVID certificate. Without the Swiss COVID certificate, many countries, largely from the Global South, would not be able to take part in the meetings unless they undergo PCR tests every 72 hours, said a concerned member after the meeting. According to the WTO circular, seen by the SUNS, the four vaccines approved by the EMA are Pfizer/BioNTech, Spikevas (Moderna), Jansen (Johnson & Johnson) and Vaxzevria (AstraZeneca). The circular said that “persons vaccinated abroad with a vaccine authorized by EMA are invited to apply as soon as possible to obtain a Swiss COVID certificate.” In the following paragraph in the circular, members are told that “persons vaccinated abroad with a vaccine only listed by WHO for emergency use cannot yet apply. Further information will be given as soon as available. The present list of concerned vaccines includes: BBIBP-CorV (Sinopharm), Coronavac (Sinovac), CoviSheild and Covaxin.” It also says that “the EU digital COVID certificate or other states whose QR codes are compatible with European or Swiss system are recognized in Switzerland. Persons in possession of such a certificate do not have to apply for a Swiss certificate.” Essentially, the WTO circular seems to have unwittingly introduced a kind of “vaccine apartheid” for attending MC12, while undermining the principle of “inclusive” participation of all members, said a person, who took part in the meeting. Initially, the WTO Secretariat informed members on 6 October, that they would have to get “a valid COVID test (PCR or antigenic) for entering the MC12 venues, to all non-Swiss resident participants.” Members were informed that “this is without prejudice to COVID-related obligations that might be required to enter Swiss territory or to access any place other than the MC12 venues.” Although members felt that the PCR test is cumbersome and uncomfortable, they had agreed to undergo the test because it has treated all non-Swiss delegates on an equal footing, said another person, who asked not to be quoted. Subsequently, at the informal WTO General Council (GC) meeting on 10 November, the Swiss officials and the Secretariat have apparently conveyed verbally that if the participants are going to have the Swiss COVID certificates in large numbers then they could participate in all meetings. At the meeting, members were also advised that they can obtain Swiss COVID certificates with the World Health Organization’s approved vaccines for emergency use, which include the two vaccines from China and the other two from India. “This is outright discrimination,” a participant said, suggesting that while ministers from Europe and the US can walk freely into the conference, ministers from other countries will have to undergo PCR tests every 72 hours. “The WTO sold the idea that the Swiss COVID certificate can be obtained on the basis of the WHO-approved vaccines and now they are saying that they would provide Swiss COVID certification only to EMA-approved vaccines,” said the participant. At the information meeting on 18 November, the Sri Lankan delegate sought to know whether their minister, who was vaccinated with Moderna’s Spikevas vaccine outside the EU area, is eligible for the Swiss COVID certificate. Apparently, no clear answer was provided at the meeting, the participant said. NOT ELIGIBLE TO ATTEND VIRTUAL MEETINGS The second issue that has agitated WTO members is that the WTO Secretariat has apparently informed members that it will issue five or six entry cards for each delegation to take part in the Heads of Delegation (HoD) meetings during the ministerial conference. It was also given to understand that the rest of the members could watch the conference virtually, the participant said. However, members are now being told that they cannot participate in the proceedings virtually. This is “clearly unacceptable,” the participant said. All this goes to suggest that things are not going to be inclusive at the meetings, as promised by the WTO director- general Ms Ngozi Okonjo-Iweala, the participant said. Unless the WTO Secretariat clarifies these two issues – Swiss COVID certification and allowing delegates to participate virtually in HoDs and other meetings – several trade ministers are considering not attending the conference, the participant said. However, the Secretariat officials informed members that they will clarify these two issues before 30 November, when MC12 is scheduled to start. “DUBIOUS” ROLE OF GC-APPOINTED FACILITATOR In addition to the logistical difficulties being created for members from the Global South to attend the meetings at MC12, the developing countries are also being forced to confront the alleged questionable practices adopted by Ambassador David Walker from New Zealand, the facilitator for preparing the WTO’s response to the pandemic. Since he began his work six months ago, Ambassador Walker has stubbornly stuck to his view that he will address only the trade-related issues concerning the pandemic. A draft ministerial decision issued on 25 October proposes a large set of measures. They include (1) transparency and monitoring; (2) export restrictions and prohibitions; (3) trade facilitation, regulatory cooperation and coherence, and tariffs; (4) the role of trade in services; (5) collaboration with other international organizations and stakeholders; and (6) framework for future preparedness that includes establishing a “work plan on Pandemic Preparedness and Resilience.” Ambassador Walker has refused to discuss issues concerning intellectual property rights (IPRs), particularly the much-delayed TRIPS waiver proposal co-sponsored by 64 developing and least-developed countries, on grounds that they are being dealt with by the TRIPS Council, chaired by Ambassador Dagfinn Sorli from Norway. Notwithstanding the facilitator’s seemingly obdurate positions, India, as well as South Africa along with Pakistan, Sri Lanka, and Egypt submitted their specific proposals to be included in the facilitator’s process for arriving at an outcome on the WTO’s response to the pandemic, said people familiar with the development. In its proposal, India called for inserting language on food security and the TRIPS waiver. India highlighted “addressing intellectual property challenges in augmenting manufacturing capacities and ensuring unimpeded, timely and secure access to quality, safe, efficacious and affordable health products and technologies for all, for a rapid and effective response to pandemics, including a waiver from specific provisions of the TRIPS Agreement, wherein the TRIPS waiver component has to be finalized before MC12. WTO response to pandemics without the TRIPS waiver element will not be credible.” In a similar vein, South Africa along with Sri Lanka, Pakistan, and Egypt, in their revised proposal circulated on 3 November (Job/GC/278/Rev.1), argued that “recognizing the crucial need to diversify and scale-up production to meet global demand and promote economic recovery, 64 WTO Members have proposed a waiver from certain provisions of the TRIPS Agreement for the prevention, treatment, and containment of COVID-19 (IP/C/W/669/Rev.1). Adoption of this proposal remains an urgent priority and is essential to achieve equitable access.” The proposal by the four countries said that “beyond COVID-19, resilience building, response, and recovery to face domestic and global crises, also requires WTO Members to address issues and concerns with respect to intellectual property. For instance, WTO Members should not prevent or discourage another Member from utilizing flexibilities of the TRIPS Agreement or in any way limit such flexibilities, hence, restricting policy options to respond to crises.” Under intense pressure from the developing countries, the facilitator reluctantly included language from the two proposals – India’s as well as the proposal by the four countries – in his draft text. Currently, there are several rounds of meetings that are taking place, with little progress. Meanwhile, the Ottawa Group of countries led by Canada are also putting forward their additional proposals, including the EU’s proposal relating to the use of compulsory licensing to address the pandemic. Barring a couple of paragraphs, which have been cleaned up, the rest of the paragraphs in the draft ministerial text remain in brackets, said people, who asked not to be quoted. Ambassador Walker apparently warned members that if they are not able to clean up the text soon, he will come up with a shorter text under his own responsibility, suggesting that there will be no discussions on the text, said people, who asked not to be quoted. Apparently frustrated by the process adopted by the facilitator on the WTO’s response to the pandemic, it appears that members are dealing with a “rogue facilitator,” said a person, who asked not to be quoted. Given the state of play in the facilitator’s discussions, the chances of finalizing an outcome on the WTO’s response to the pandemic seem pretty slim, the person said. TRIPS COUNCIL MEETING Meanwhile, at a formal meeting of the TRIPS Council on 18 November, the chair, Ambassador Dagfinn Sorli from Norway, has issued his oral report that will be considered at the General Council on 22 November. The oral report suggests that there is no progress on either the TRIPS waiver or the EU’s proposal relating to the use of compulsory licensing, said people who took part in the meeting. “On the waiver request proposal,” the chair’s report suggested that “disagreement persists on the fundamental issue of whether a waiver is the appropriate and most effective way to address the shortage and inequitable distribution of, and access to, vaccines and Covid-19-related products.” The report also said there are sharp disagreements on the EU’s proposal. It called for more discussions on these two proposals. In separate statements, India and South Africa regretted that there has been no constructive engagement on their revised waiver proposal that seeks to suspend the implementation of key provisions in the TRIPS Agreement relating to copyrights, industrial designs, patents, and protection of undisclosed information for ramping up the production of diagnostics, therapeutics, and vaccines across countries to combat COVID-19. India warned that “we cannot fathom an outcome at the ministerial conference on the WTO’s response to the pandemic that does not contain an article on this element,” suggesting that the “naysayers” could show solidarity with the demand from the majority of countries on formulating a concrete outcome. South Africa said that it remains open to ensuring that whatever solution members can come up with is workable, suggesting that it appreciated some constructive bilateral engagements that took place in the past several weeks. Indonesia said that failing to deliver a meaningful outcome on the TRIPS waiver at MC12 will have an impact both on the WTO and its members. Switzerland and the United Kingdom, which have opposed the TRIPS waiver, called for a workable and pragmatic outcome at MC12. The US recounted the bilateral meetings that it held with members during the past several weeks both in Geneva and in capitals. At the meeting, Nigeria sought to know whether the EU proposal is a replacement of the waiver request proposal or is a complementary initiative. Ambassador Sorli said that members themselves have to resolve this issue, according to people familiar with the development.
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