TWN Info Service on WTO and Trade Issues (Nov20/05)
7 November 2020
Third World Network

Battle-lines being drawn over upcoming discussion on TRIPS waiver
Published in SUNS #9227 dated 6 November 2020

Geneva, 5 Nov (D. Ravi Kanth) – In the battle for a proposed waiver from implementing the provisions of the WTO’s TRIPS Agreement in combating the COVID-19 pandemic, the lines are being drawn at the upcoming WTO’s TRIPS Council meeting between the United States and its allies on the one side, and a large majority of developing and least-developed countries on the other, said people familiar with the development.

The TRIPS Council is expected to convene a meeting later this month to resume the inconclusive discussions on the joint proposal submitted by South Africa, India, Eswatini (formerly Swaziland) and Kenya to suspend temporarily several provisions of the TRIPS Agreement for combating the COVID-19 pandemic, said a person, who asked not to be quoted.

The four countries have called for “a waiver to be granted to all WTO members so that they do not have to implement, apply, or enforce certain obligations related to COVID-19 products and technologies under Section 1(copyrights and related rights), Section 4 (industrial designs), Section 5 (patents) and Section 7 (protection of undisclosed information) of Part II of the WTO’s TRIPS Agreement.”

The joint proposal by the four countries had made it clear at the TRIPS Council meeting on 16 October that their proposed waiver is “limited and does not suggest a waiver from all possible TRIPS obligations.”

At the TRIPS Council meeting on 16 October, the United States, the European Union, Switzerland, the United Kingdom, and Brazil opposed the waiver on grounds that it would undermine the TRIPS Agreement (see SUNS #9214 dated 20 October).

The US said that it “does not support the waiver proposal of India and South Africa,” suggesting that it weakens “IP (intellectual property) protection and enforcement [and] would be counterproductive to the creation of needed medical technologies, and would not address the current and main challenges to access concerning manufacturing and raw material resources.”

Canada, which has found it very difficult to implement the Doha paragraph six mechanism for HIV/AIDS and tuberculosis in the past, said that it “remains fully available to discuss the specific challenges faced by Members in procuring COVID-19 treatments and other related technologies, so that Members may identify what WTO and other avenues would provide the best ways forward, as appropriate and in coordination with other efforts at the WTO, WHO, and other institutions.”

Canada said it “also remains fully available to discuss the specific challenges of Members in using the special compulsory licensing system under the TRIPS Agreement, and to discuss Canada’s own experience with this system.”

“We are also open to hearing more from proponents of the IP/C/W/669 proposal on the specific problems and gaps that this proposal would seek to address as well as the views of other Members,” Canada said on 16 October.

In sharp contrast, many developing countries, including China, coalesced around the joint proposal, saying that it would enable countries to address the COVID-19 pandemic in a holistic manner.

More importantly, the proponents made it clear that the waiver is only meant for fighting the COVID-19 pandemic that has claimed more than one million lives all over the world.

South Africa said that the waiver should continue “until widespread vaccine is in place globally (for fighting the novel coronavirus) to ensure the majority of the world’s population has developed immunity, hence, we propose an initial duration of [X] years from the date of the adoption of the waiver.”

The joint proposal, according to India, caters to those countries that have insufficient or no manufacturing capacity in the health products required to combat the COVID-19 crisis.

“We would like to remind members that in a global pandemic where every country is affected, we need a global solution, and our waiver proposal represents an open and expedited global solution to allow uninterrupted collaboration in development, production and supply of health products and technologies required for an effective COVID-19 response,” India argued at the TRIPS Council meeting last month.

The joint proposal was supported by many developing and least-developed countries, including China, at the TRIPS Council meeting last month.


China, which is campaigning for a people’s vaccine to be suppled to all developing and least-developed countries for free, said the “COVID-19 has severely threatened human life, security and health, disturbed the function of global supply chain and brought great challenges for the normal supply of treatment medicines and relevant medical equipment.”

“The joint proposal emphasizes the difficulties faced by developing Members and LDCs and seeks to ensure Members’ timely, equitable and affordable access to commodities in relation to the prevention, containment and treatment of COVID-19, especially COVID medicines and vaccines,” China emphasized at the TRIPS Council meeting on 16 October.

China said it would lend its support “to exploring this issue at the TRIPS Council,” arguing that it has “taken good note of the capacity constraints that developing Members encounter in using TRIPS flexibilities such as compulsory licensing, as pointed out by the proposal.”

China said that it “has made a serious commitment that COVID-19 vaccine development and deployment in China, when available, will be made a global public good and developing countries will be our priorities.”

China indicated that it has joined “the COVID-19 Vaccines Global Access Facility, or the COVAX Facility, and will take concrete measures to promote the fair distribution of COVID vaccines, especially among developing Members.”

China said it “is willing to discuss access to commodities in relation to the prevention and control of COVID-19, including medicines and vaccines under the framework of the TRIPS Agreement, and supports the discussions on possible waiver or other emergency measures to respond to the pandemic, which are “targeted, proportional, transparent and temporary”, and which do not create unnecessary barriers to trade or disruption to global supply chains.”

However, serious doubts are apparently being cast on the COVAX facility and whether it will ensure affordable access for the new vaccines that are being developed in the US, the EU member countries, and the UK among others.

According to Rashmi Banga, a senior economist at the United Nations Conference on Trade and Development (UNCTAD), the “Covax facility is a global initiative for procuring and equitably distributing COVID-19 vaccine.”

Under this facility, 92 low- and middle-income countries were identified and “the expectation was that these countries would get access to the vaccine for billions of their poor people without paying upfront like the self-financing countries,” she said.

Sadly, “they have now been asked to pay upfront costs equivalent to $1.6 to $2 per vaccine dose (each person needs two doses),” she said at the Geneva Press Club (Club Suisse de la Presse) last week.

“The Covax facility should aim at providing people vaccines free of cost in at least the LDCs, while charging more from countries which can afford to pay,” Banga said, explaining the dynamics of several issues concerned with ensuring affordable vaccines in the poorest countries.

Quoting estimates provided by the World Health Organization (WHO), Banga said that “according to WHO’s Covid-19 global access initiative, 2 billion doses will be made available by the end of 2021 to ensure 20% of the population of each country is vaccinated.”

However, there is a severe funding shortage, she said, suggesting that “of the $38 billion needed by WHO to fight COVID, only $3 billion has been raised.”

According to Banga, “several drug-makers including Pfizer, AstraZeneca, Johnson & Johnson and Novavax Inc have said they expect to produce at least 1 billion doses of their vaccines next year if they get regulatory authorization.”

With the global population at around 7.6 billion people, Banga asked whether there is the “logistics of rolling out a vaccine to seven billion people worldwide?”

Given the need for making billions of doses of several types of Covid-19 vaccines, which will have to be manufactured, distributed and administered across the globe, she said that “it’s not easy to get international cooperation, because many rich countries are already doing bilateral deals with drug companies to make sure they can secure supplies if the “magic formula” is found.”

In short, Banga suggested that the joint proposal by the four countries offers an expeditious route for combating the COVID-19 pandemic and for ensuring “the adequate supply and equitable distribution of vaccines, medicines and medical technologies” as it would remove “some of the barriers created by intellectual property rights in the area of technology transfer and to encourage manufacturers and research groups to work together towards a common goal.”

“That way,” she said, “when the first safe and effective vaccines and treatments emerge, multiple manufacturers can immediately start producing them simultaneously.”

She said that there are “several reports about intellectual property rights hindering or potentially hindering timely provisioning of affordable medical products to the patients.”

According to Banga, “some WTO Members have carried out urgent legal amendments to their national patent laws to expedite the process of issuing compulsory/government use licenses.”

“In addition, many countries, especially developing countries, may face institutional and legal difficulties when using the flexibilities available in the TRIPS Agreement,” she argued.