TWN Info Service on WTO and Trade Issues (Mar22/22)
29 March 2022
Third World Network

Leaked IP text presented as "take it or leave it" by WTO Secretariat
Published in SUNS #9544 dated 29 March 2022

Geneva, 28 Mar (TWN) -- The World Trade Organization's Director-General Ms. Ngozi Okonjo-Iweala is understood to be advocating for the rapid adoption of the leaked intellectual property text on the basis that "no one likes it", cautioning WTO Members that unless this is agreed to, there will be nothing else.

The text has been presented as a "take it or leave it" proposal by the WTO Secretariat, according to some WTO delegates, who asked not to be quoted.

The leaked text presents an outcome "below the minimum" and is more intended to save the WTO, than to save lives, asserted a developing country trade official.

The TRIPS Waiver proponents have long argued that a credible WTO package to respond to the pandemic has to include a meaningful outcome on the TRIPS Waiver proposal.

Adoption of an outcome on the TRIPS Waiver proposal, though ineffectual would essentially clear the path for the WTO and the European Union to deliver a package on the WTO's response to the pandemic.

Since the text was leaked by Stat.news on 15 March, the WTO DG has been in a series of meetings with many delegations in an attempt to socialise the text.

At a meeting with the African Group on 22 March, the DG sought the African Group's support for the leaked IP text, praising it as an important breakthrough for addressing the COVID-19 pandemic, said people who asked not to be quoted.

She clarified that she was waiting to hear from the US, the EU, South Africa and India about their approval of the leaked text, before transmitting the same to the wider WTO membership.

On 16 March, the WTO DG made clear that the text has not been agreed among the four and internal consultations were underway.

In the meantime, international experts, civil society and academics have pointed out that the text is not a TRIPS Waiver and instead adds obligations that could hinder local manufacturing and access as well as set a negative precedent for the future.

If South Africa and India were to endorse the leaked text, it would be projected as a big win for the EU and the US as well as the WTO Secretariat that has been struggling to show its relevance.

Several African Group members apparently raised concerns over the contents of the leaked text during the meeting, an African trade official, who took part in the meeting, told SUNS on the condition of anonymity.

POSITIONS OF THE EU & THE US

The EU has been a fierce opponent of the TRIPS Waiver proposal, deploying every possible tactic to delay or co- opt the proposal.

In June 2021, the EU proposed a draft declaration re-stating the existing flexibilities pertaining to the use of non- voluntary license.

This proposal made little headway in the TRIPS Council as developing country delegations argued that the EU proposal did not add any new flexibilities to facilitate equitable access.

A confidential communication of the European Commission motivates support from its Members for the leaked text, arguing that "the basis is the same as in the draft declaration put forward by the Commission in June 2021".

The EU trade commissioner Valdis Dombrovskis apparently held a meeting with the 27 EU member states on 17 March to clear the decks for Brussels' approval.

The US is also apparently pushing India and South Africa to agree to the leaked IP text, said people familiar with the development.

The US has all along maintained that it would agree to a TRIPS waiver only for vaccines, though the 65 co-sponsors led by India and South Africa, had in their revised waiver proposal circulated on 25 May, proposed that, "The obligations of Members to implement or apply Sections 1 (copyrights), 4 (industrial designs), 5 (patents) and 7 (undisclosed information) of Part II of the TRIPS Agreement or to enforce these Sections under Part III of the TRIPS Agreement, shall be waived in relation to health products and technologies including diagnostics, therapeutics, vaccines, medical devices, personal protective equipment, their materials or components, and their methods and means of manufacture for the prevention, treatment or containment of COVID-19".

Yet, despite strenuous discussions for the past 18 months, the leaked text proposes a meagre solution only limited to vaccines, with "extension" of the outcome to "production and distribution of COVID-19 diagnostics and therapeutics" no later than six months after the decision is adopted.

Other aspects of the leaked text also raises concerns (see SUNS #9536 dated 17 March 2022).

INTERNATIONAL OPPOSITION TO LEAKED TEXT

As the WTO DG rushes to convince WTO Members to live with the text for the sake of the WTO, leading international personalities, academics as well as civil society organizations have spoken out against the text.

In a letter dated 21 March 2022, leading economists Nobel Laureate Joseph Stiglitz, Prof. Jayati Ghosh and Peter Kamalingin B. L, Pan-Africa Director, Oxfam called on South Africa to not agree to the proposal, stressing that a "bad deal is worse than no deal".

The letter argues that: "Developing countries have experienced the worst effects of COVID-19. The crisis is far from over as infections and deaths continue all over the world. New variants are also expected to emerge, with the potential to further devastate countries socially and economically. A meaningful outcome on the TRIPS Waiver proposal holds the key to promoting equitable access to the COVID-19 medical tools that can facilitate and sustain socio-economic recovery and protect the lives and livelihoods in South Africa, India and many other developing countries. It is for this reason your waiver proposal is co-sponsored by 65 WTO Members and has received widespread support from the international community. In contrast to your inspiring leadership for a meaningful waiver of IP barriers, this text reflects the interests of multinational pharmaceutical companies in preserving the deadly status quo."

Ban Ki-Moon, the eighth Secretary-General of the United Nations, and a Member of Club de Madrid, also called on India and South Africa not to agree to this without major changes to the text.

In critiquing the leaked text in his Op-ed, Ban Ki Moon states: "It is too narrow in scope, excluding certain countries and covering only vaccines, ignoring the urgent need for other coronavirus treatments", adding that it "addresses only patents, not other intellectual property barriers like trade secrets which are essential for the manufacture of vaccines".

It further states "Worse still, rather than smooth the path for low and middle-income countries to begin manufacturing, it adds even greater restrictions. It would fundamentally change Indian patent law, requiring the near-impossible task of identifying and listing every patent in a vaccine, many of which are not even in the public domain. And it would even add further restrictions to the use of existing flexibilities in the WTO TRIPS agreement to produce vital generic medicines".

"In short, it bears little resemblance to the practical and comprehensive waiver of intellectual property rules India and South Africa have proposed - and that leaders and experts across the world supported", "[i]n fact, it is barely a waiver at all, with elements of the intellectual property agreement actively reinforced", he adds, further stressing that the result "will do little to improve access to vaccines and treatments."

Ban also stresses that, "The global north is used to getting its way. But by demanding more than this inadequate compromise, Prime Minister Modi and President Ramaphosa will send a powerful message that the global South will not accept half-measures when our lives are on the line. And they can build on the remarkable progress that has been made so far to work towards a genuine solution to this crisis; a full waiver of intellectual property rules on Covid-related technologies."

"India and South Africa have challenged the status quo that has left billions of people at risk from Covid-19. Their leadership will be remembered well by the history books. Now, they must reject this deal and insist on a better one. The EU and US must return to negotiations with a new resolve, to secure the right of the global South to produce Covid-related technologies. Only then will we restore faith in multilateralism and make meaningful progress towards ending the pandemic," he concludes.

Writing in The Wire, an internet news service, on 22 March, Max Lawson, the co-convenor of the People's Vaccine Alliance, said that, "For two years, the EU has actively protected the hyper-profitable pharmaceutical monopolies held over COVID-19 vaccines technologies - even while over a hundred capable manufacturers could have been making them. The global public health leader and executive director of UNAIDS Winnie Byanyima has argued that had such steps been taken, we may have ended the pandemic by now."

"But finally, after huge pressure from countries and people around the world, the EU is at the table. It says it is ready to compromise. It has put this to South Africa and India and other countries. Sadly, it is far from an adequate compromise. This is not a TRIPS waiver. After millions of avoidable deaths from COVID-19 and with infection rates soaring once again across our continent, agreeing to it would indeed not be a genuine compromise, but instead a gift for the EU and their pharmaceutical corporations."

He charged the EU for adding more barriers to the compromise instead of lifting them, adding that "these include an onerous and neigh on impossible requirement to identify and list all patents related to a vaccine."

Lawson also said that "India and South Africa, must now accept the weakness of this proposal. They must demand that it is dramatically improved before it is endorsed. They must continue to lead the Global South in the demand for equal rights in production and lead the world towards ending this pandemic."

A 18 March letter by several concerned academics and researchers in Southern Africa, also urges President Cyril M Ramaphosa "not to agree to the draft text in its current form and to continue to show the resolve that might deliver a meaningful waiver that will give freedom to operate for companies in South Africa and elsewhere to manufacture, sell, and equitably distribute COVID-19 countermeasures to the populations that have suffered devastating shortages and inequality during the entire pandemic".

The letter points out that the leaked text contains "many elements that are actually TRIPS-plus (not otherwise required by the TRIPS Agreement), such as the obligation to list all patents on vaccine components and final products and the obligation to report multiple details to the WTO. The requirement to list patents is particularly onerous and impractical. There are 280 components to mRNA vaccines sourced from 19 countries. Patents would have to be listed for each patented component and for the final vaccine itself. The patent landscape would have to be examined and re-examined not only in South Africa, but in the countries of production and export of components not manufactured here. Many patents would be unpublished and new patents could be filed even on existing vaccines, meaning that compulsory licensing applications would need to be continuously amended to add new patents in order to comply with mandatory conditions in the text. This requirement is TRIPS-plus and, as a pragmatic, procedural matter, totally eviscerates the "solution"."

WTO MINISTERIAL CONFERENCE

Meanwhile, Ms Okonjo-Iweala has apparently indicated that there is considerable uncertainty about the WTO's 12th ministerial conference (MC12) that is expected to be held on 12-15 June, due to the current Russia-Ukraine war.

Given the interests of Russia and Ukraine in the negotiations on outcomes on agriculture and a fisheries subsidies agreement, the DG seems concerned that without their participation and approval, it would be difficult to conclude MC12 successfully, an African trade official told the SUNS.+