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Info Service on Health Issues (Dec22/01) Geneva, 8 Dec (D. Ravi Kanth) — In a restricted Job document (Job/IP/65) issued on 7 December, the chair of the TRIPS Council, Ambassador Lansana Gberie of Sierra Leone, submitted a draft report to the WTO’s General Council stating that “there is currently no consensus among Members to take a decision under paragraph 8 of the Decision” on the TRIPS Agreement that requires members to conclude a decision to extend the MC12 Ministerial Decision on the TRIPS Agreement to COVID-19 diagnostics and therapeutics. The chair added that “members agree to continue discussions in the TRIPS Council and to report to the General Council no later than 30 June 2023.” However, it is unclear if there is agreement on the chair’s draft report. In his draft report, the chair said that “since the adoption of the Decision (on the TRIPS Agreement on 17 June), Members have held discussions in this regard in formal and informal meetings of the TRIPS Council on 6 July, on 19 September, on 3 and 12-13 October, on 2 and 22 November, and on 6 [and 15] December 2022.” He said that delegations “have exchanged views, asked questions, and provided responses, clarifications, and information, including through new submissions circulated as documents RD/IP/49, IP/C/W/693, RD/IP/51 and IP/C/W/694.” As reported in SUNS #9706 dated 8 December 2022, many developing and least-developed countries proposed a draft decision, in document IP/C/W/694 of 6 December, stating that the Ministerial Decision on the TRIPS Agreement adopted on 17 June is “far removed from the comprehensive TRIPS waiver proposal contained in documents IP/C/W/669 and IP/C/W/669/Rev.1 (“original TRIPS waiver proposal”) co-sponsored by 65 WTO members (co-sponsors).” The co-sponsors such as Argentina, Bangladesh, Bolivia, Egypt, India, Indonesia, Pakistan, South Africa, and Venezuela said that “a more comprehensive waiver decision as envisaged in the original TRIPS waiver proposal would support the efforts to ensure timely, equitable and universal access to safe, affordable and effective therapeutics and diagnostics, ramping up of production and expanding supply options.” They argued that the “MC12 Ministerial Decision on the TRIPS Agreement (document WT/MIN (22)/30) is the result of over one and a half years of arduous and lengthy discussions on the original TRIPS waiver proposal and intense negotiations heading towards the 12th Ministerial Conference in the midst of a global crisis” and “it is of limited scope covering only vaccines.” The co-sponsors said that “diagnostics and therapeutics are essential tools for a comprehensive approach to fight the pandemic, that it is not over.” Against this backdrop, “omitting these vital tools will deter the effectiveness of the decision that aims [at] timely and affordable access to effective vaccines against the ongoing COVID-19 pandemic,” the co-sponsors said. “At a minimum,” the co-sponsors emphasized, “the extension of the policy tools provided in document WT/MIN/(22)/30 to therapeutics and diagnostics will result in a holistic approach to enable developing countries to address those IP (intellectual property) barriers that prevent the expansion and diversification of production and increase accessibility to crucial life-saving COVID-19 tools.” Further, “the current outcome represents a narrow-conditioned Decision due to demands of some WTO members, requiring significant compromises on the part of the co-sponsors that had hoped for greater solidarity among WTO members during a public health emergency and consequently a more comprehensive waiver decision as envisaged in the original TRIPS waiver proposal that would support ramping up of production and expanding supply options.” The co-sponsors proposed that the General Council, which is scheduled to meet on 19 December, “immediately extend the 17 June TRIPS Decision adopted by the Ministers by consensus after long protracted negotiations, mutatis mutandis to therapeutics and diagnostics.” “WTO Members have an opportunity to show they can act promptly to respond to the ongoing COVID-19 pandemic and the challenge of inequitable access to therapeutics and diagnostics and respond to the criticism that the Decision on vaccines came too little too late,” they said. The co-sponsors submitted a “Decision Text” for the General Council to adopt on 19 December. Yet, the renewed attempts by the co-sponsors for finalizing a decision “mutatis mutandis to therapeutics and diagnostics” now appear to be scuttled, with the chair’s draft report proposing to defer any decision till end-June 2023. Even though the major pharmaceutical-producing countries in the North, particularly Switzerland, openly adopted “stonewalling” tactics by raising questions on the need to extend the MC12 Ministerial Decision to COVID-19 diagnostics and therapeutics, the chair, in his draft report, did not provide an account of the tone and tenor of the discussions, said people, who asked not to be quoted. However, Ambassador Gberie maintained that “delegations engaged actively and their detailed substantive exchanges helped clarify various aspects and nuances of positions.” Without naming these countries, the chair said that “while delegations remain committed to the common goal of providing timely and secure access to high-quality, safe, efficacious and affordable medical technologies for all, disagreement persists on whether an extension of the Decision to cover the production and supply of COVID-19 diagnostics and therapeutics is necessary or appropriate to address any inequitable distribution of such COVID-19 related products.” The chair noted that “on 6 December 2022, a group of Members tabled a proposal for the General Council to extend the Decision mutatis mutandis to COVID-19 therapeutics and diagnostics.” According to Ambassador Gberie, “other Members preferred to continue fact- and evidence-based discussions on whether there are IP- and TRIPS-related barriers to accessing COVID-19 therapeutics and diagnostics, and on the exact scope of a potential extension of the Decision.” A CONSTANT PRACTICE AT WTO It seems to have become a constant practice at the WTO where decisions aimed at providing even limited flexibilities to developing and least-developed countries are invariably vetoed on one ground or the other. Paragraph eight of the MC12 Ministerial Decision on the TRIPS Agreement merely sought to extend the TRIPS decision on vaccines to cover the production and supply of COVID-19 diagnostics and therapeutics. Yet, the United States in particular, sought to undermine the decision by subjecting the issue to an investigation by the US International Trade Commission (USITC). The US statement, coming hours before the “green room” meeting of select countries on 6 December which was followed by an informal TRIPS Council meeting, has put paid to any decision under questionable grounds. If the US had doubts about paragraph eight from the beginning, it could have subjected the MC12 Ministerial Decision to thorough scrutiny before its USITC in July itself. As reported in the SUNS #9624 dated 27 July 2022, the US maintained that paragraph eight is only to discuss further the issues concerning diagnostics and therapeutics but not to conclude a decision by 17 December. Later, the US changed its stance by saying that it is open to discussions on paragraph eight, and finally on 6 December, the US made the announcement that it has referred the issue to its USITC. It is almost clear from day one that the major pharmaceutical-producing countries, particularly the US, may not agree to extend the MC12 Ministerial Decision on the TRIPS Agreement to diagnostics and therapeutics given the opposition from their Big Pharma. +
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