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TWN Info Service on WTO and Trade Issues (Feb22/18)
23 February 2022
Third World Network


WTO fails to finalize TRIPS waiver and response to pandemic
Published in SUNS #9518 dated 21 February 2022

Geneva, 18 Feb (D. Ravi Kanth) – In the face of the worsening COVID-19 pandemic due to the new Omicron variant of the SARS-CoV-2 virus, the issue of the temporary TRIPS waiver has apparently become the central dispute between the European Union and leaders of the African Union at their summit in Brussels on 18 February, said people familiar with the development.

At the summit, South Africa’s President Cyril Ramaphosa raised the issue of the TRIPS waiver, saying that “governments that are really serious about ensuring that the world has access to vaccines should ensure that we approve the TRIPS waiver as we’ve put forward,” according to a news report in Politico on 18 February.

In a statement issued at the EU-African Union leaders’ summit, President Ramaphosa apparently underscored the importance of the TRIPS waiver in addressing the COVID-19 pandemic.

He emphasized that an agreement between the EU and the Africa Group on the waiver means “mutual respect, mutual recognition of what we can all bring to the party, investment in our economies, infrastructure investment and, in many ways, giving back to the continent.”

Several other African leaders appear to have demanded that the EU accept the TRIPS waiver so as to ensure that African countries can create manufacturing facilities for producing diagnostics, therapeutics, and vaccines to combat COVID-19.

However, the President of the European Commission, Ms Ursula von der Leyen, pushed back on President Ramaphosa’s assertions, saying that there was a need to protect intellectual property. Instead, the focus should be on compulsory licensing, according to the Politico news report.

In effect, the EU, which has been a major stumbling block on an agreement on the temporary TRIPS waiver at the WTO, appears determined to press ahead with its own proposal on compulsory licensing which mostly restates Article 31 of the WTO’s TRIPS Agreement.

Significantly, the South African President said the COVAX (COVID-19 Vaccines Global Access) facility should commit themselves to buying vaccines from local manufacturing hubs.

“The lack of market for vaccines produced in Africa is something that should be concerning to all of us,” said President Ramaphosa, according to a news report from the South African Broadcasting Corporation (SABC).

“Organizations such as COVAX and GAVI (The Vaccine Alliance, based in Geneva) need to commit to buying vaccines from local manufacturers instead of going outside of those hubs that have been set up,” he said.

In a tweet sent from the summit, the South African President cautioned that “unless Africa has a vaccine market, manufacturing vaccines will soon collapse. We cannot continue being consumers of medical countermeasures for diseases produced at high prices that are not affordable to the continent.”

At the EU-African Union summit, the World Health Organization announced the first six African countries, including South Africa, that are to receive the technology needed to produce mRNA vaccines.

The other countries who are expected to receive the mRNA technology include Kenya, Tunisia, Nigeria, Senegal, and Egypt.

But, until now, both Pfizer and Moderna, the two mRNA vaccine producers, declined a WHO request for sharing technology and expertise, according to the SABC news report.

ACTION SHIFTS TO WTO

Moreover, there seems to be lack of progress among the United States, the European Union, India, and South Africa on the temporary TRIPS waiver, due to continued differences, said people familiar with the development.

The temporary TRIPS waiver seeks to suspend certain provisions in the TRIPS Agreement relating to copyrights, industrial designs, patents, and protection of undisclosed information for a minimum period of three years to ramp-up the production of vital COVID-19 related health products.

For the past 15-months, the 65 co-sponsors of the TRIPS waiver proposal, led by India and South Africa, waged a grim battle to finalize a decision on the waiver in the face of numerous roadblocks created by a handful of countries led by the European Union, Switzerland, and the United Kingdom among others.

Given the lack of progress in the TRIPS Council discussions, the WTO Director-General Ms Ngozi Okonjo-Iweala and her deputy Ms Anabel Gonzalez from Costa Rica held several rounds of meetings with the trade ministers/experts from the United States, the European Union, India, and South Africa to break the impasse on the waiver.

Meanwhile, in an open letter sent to the DG and her deputy Ms Gonzalez on 16 February, more than 200 civil society organizations (CSOs) said they are joining the co-sponsors of the TRIPS waiver proposal and other developing countries in stressing that “for a WTO response to the pandemic to be credible, it must deliver a bold and meaningful outcome on the TRIPS waiver proposal and address concerns about the impact of intellectual property on timely and affordable access to medical products.”

“The time for excuses is over. Billions of people around the world are waiting for the WTO to deliver a bold outcome on the TRIPS waiver proposal that will effectively and concretely contribute to enabling production in and expanding supply options towards realizing equitable access which is the key to socioeconomic recovery,” the CSOs emphasized.

(The full CSO open letter can be accessed at: https://ourworldisnotforsale.net/2022/L_WTO_2022-02-16.pdf)

In her statement at the informal General Council (GC) meeting on 25 January (Job/GC/290), the DG said that “on the WTO Response to the Pandemic and the TRIPS Waiver, everybody knows that we have been trying in a small group format to try to break through and see if we can come to some agreement. It is not easy. But we are trying.”

She said that “Ambassador (Dagfinn) Sorli (Norway), our TRIPS Council Chair, has been briefed as well as the GC Chair on what we are trying to do.”

Ms Okonjo-Iweala maintained that “the whole idea is to make that kind of breakthrough with a small group and then see if there is something we can bring to a larger group and eventually it would come to the TRIPS Council.”

Without mentioning India’s request for convening an urgent virtual ministerial meeting on the TRIPS waiver, the DG said, “I wanted to reiterate that because there are some who think that this suggestion is just to have something and then call a virtual Ministerial and maybe impose that solution on everyone.”

“No,” she said emphatically in her statement, arguing that “this belongs to the TRIPS Council and should go back to the TRIPS Council. The TRIPS Council Chair is briefed on how this is progressing. We want to have transparency and to have people comment on whatever the proposed outcome is.”

She remained confident that “this will happen but there is no doubt that we are dealing with a tough issue. Perhaps we are inching forward on progress.”

“We are not yet in a position to bring something out,” the DG said, adding, “but we keep our fingers crossed that that will happen.”

She also said at the same meeting that “if we should have a breakthrough on the IP issue, we should also be ready with the rest of the response so that we can indeed go forward with a comprehensive package.”

However, it’s time that the DG reveals the level of progress that has been made in these small-group consultations and why it remains a “tough issue”.

LACK OF PROGRESS IN SMALL-GROUP DISCUSSIONS

According to people familiar with the discussions in the small-group meetings chaired by the DG and her deputy Ms Gonzalez, the discussions are currently stuck as one major developed country seems to have gone back on its initial positions.

Consequently, there has been little or no progress made in the small-group discussions among the four members, said people, who asked not to be quoted.

Ahead of the WTO’s General Council meeting on 23-24 February, the chair of the TRIPS Council, Ambassador Dagfinn Sorli from Norway, on 16 February informed members that “the TRIPS Council has not yet completed its consideration of the revised waiver request. The TRIPS Council will therefore continue its consideration of the revised waiver request, and report back to the General Council as stipulated in Article IX:3 of the Marrakesh Agreement.”

“In addition, the TRIPS Council will also continue in the same manner as its consideration of the other related proposals by Members,” said Ambassador Sorli.

WTO’S RESPONSE TO THE PANDEMIC

Meanwhile, in a separate development concerning the WTO’s response to the pandemic, the chair of the General Council, Ambassador Dacio Castillo from Honduras, held a meeting with members to elicit their views as to what he should inform the GC meeting on 23-24 February.

At the meeting, South Africa said that several developing countries including Sri Lanka, Pakistan, Egypt, Uganda, and Venezuela among others engaged constructively on their proposal contained in document Job/GC/278 (see SUNS #9517 dated 18 February 2022).

South Africa suggested that the former facilitator’s report has apparently unraveled the process. India said that it is ready to continue discussions with members on the proposals submitted by the developing countries.

However, the US and Brazil raised sharp concerns over the proposal tabled by South Africa along with five other countries.

The US apparently said given the entrenched positions, it may take several years to complete the negotiations.

Brazil said that while it is ready to work on facilitator Walker’s text, it will not engage with the six proponents on their specific demands in the chair’s draft text, said people familiar with the development.

 


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