Cracks In The Opposition To The Waiver Proposal?
THE TRIPS WAIVER PROPOSAL: WTO TRIPS Council Informal Meeting
Originally published February 5th, 2021 on Geneva Health Files.
Vaccine production woes and internal EU squabbles on accessing vaccines might have opened up a new frontier that could help proponents of the TRIPS waiver proposal.
Although some countries continued to oppose the proposal and refused to engage in text-based discussions, diplomatic sources in Geneva say that there has been a perceptible shift in the position of many countries. Less opposition may not mean more support, but it opens up spaces for discussions particularly at the bilateral level.
Countries including Canada, the United Kingdom, Switzerland and Japan, continued to oppose the waiver proposal during the informal TRIPS Council meeting on February 4th. Members including the EU and the U.S. did not want to proceed towards text-based discussions, sources said.
Egypt, Nigeria, Jamaica on behalf of the ACP Group, Pakistan, Tanzania on behalf of the African Group, Zimbabwe, India, Kenya, Venezuela and Sri Lanka spoke in favor of South Africa’s suggestion to discuss “text” for the waiver proposal.
Some believe that the continuing deliberations at the TRIPS Council without agreeing to discuss the proposal in concrete steps is a stalling tactic of some developed countries. However, as infections and deaths from COVID-19 continue, and variants of SARS-CoV-2 proliferate raising concerns on the efficacy of new vaccines, these countries have been forced to consider the political implications of their decisions. This might contribute to their willingness to engage in finding potential agreement in the context of the proposal, diplomatic sources in Geneva said on the condition of anonymity.
“We need to close the evidentiary loop and get down to textual negotiations that can further refine the waiver proposal that we tabled. We cannot continue to engage in endless discussions while in the real-world millions of lives are lost to the coronavirus pandemic,” South Africa said in a statement.
It is understood that a number of countries questioned and criticised the EU on new export restrictions.
In its statement, South Africa said: (excerpts)
“…Those countries that continue to oppose the waiver most vociferously are indeed the ones that have secretly bought up the available production and continue to collude with pharmaceutical companies under the veil so secrecy. We have now seen the chicks come home to roost, where the veil of secrecy has been lifted and one Member has now taken measures to restrict exports from its territory. Yet this Member is a proponent of free trade and the non-application of export restrictions.
This very Member has posed pointed questions to the proponents yet does everything it can to undermine global solutions being sort, even in light of the fact that it proclaims itself to be a major donor to such global initiatives. Secrecy is at the heart of this matter, and even under these dire circumstances where the lives of millions of citizens of this Member are at risk and vaccine supplies having been reprioritised away from this Member, it still refuses to face the reality of the situation.
The EU has gone down a slippery slope, the consequence of its export authorisation scheme, which is de facto an export restriction, will have manifold implications for all of us and may launch an avalanche of further trade restrictive measures by other Members.
The EU export control regime on COVID-19 vaccine is supposed to be implemented on objective, transparent, and proportionate grounds, can the EU give assurances to that effect? Is the authorisation process rule-based or influenced by diplomatic considerations and therefore arbitrary?”
EU responded to these criticisms by laying out the scope and duration of these restriction measures. The EU reportedly acknowledged facing “significant difficulties” with respect to accessing vaccines. It said that the decision to resort to export restrictions was in response to a possible breach of contracts signed with the EU. It said that doses initially targeted for the EU may have been exported to third countries. In order to prevent such violation, the Commission decided that all vaccine manufacturers should declare exports to third countries. It explained that these obligations target vaccine manufacturers, and applicable until end of March 2021. The EU assured members that these measures will be proportionate and will not slow down the vaccine trade between the EU and third countries, a source said.
Production concerns might give way to some scepticism towards manufacturing capacities of developing countries. Opposing countries have long argued that complex drugs such as mRNA vaccines will need technology transfer, for example. Therefore a waiver may not solve these challenges, some countries have said.
Proponents also furnished information highlighting manufacturing capabilities in the developing world. “Out of the 154 prequalified vaccines under WHO’s PQ program 72 vaccines are produced by vaccine manufacturers from developing countries. These vaccines are originating from various developing country manufacturers including from India, China, Brazil, Cuba, Thailand, Senegal and Indonesia. Similarly, LMIC countries have a substantial share in prequalified finished pharmaceutical products, active pharmaceutical ingredients and vaccines”, South Africa said in a statement.
“There seems to be some interest in exploring spare capacities for boosting manufacturing capacities. Some of the bilateral discussions could focus on finding immediate solutions,” one diplomatic source said.
Sources also indicated that the US said it was open to “working together with members to better understand the facts” where TRIPS obligations on patents, copyright, industrial designs, or trade secrets might have led to constraints on manufacturing capacity.
This is being read as a shift in positions of some of these countries from hard-core denial on intellectual property being a barrier to a tone which is more conciliatory. Some members are beginning to explore whether there are barriers to access posed by intellectual property protection, one official said. A greater push for the use of TRIPS flexibilities by European countries is also a distinct change, a diplomatic source pointed out.
EMERGING SIGNS OF SUPPORT?
Dr Anthony S Fauci this week called for supplementing the abilities of countries to produce vaccines in a way that countries can have the productive capacities so that they could manufacture vaccines with the cooperation from pharma companies for the relaxation of patents. He drew parallels to the interventions by rich countries during the HIV crisis.
Movement In Brussels?A Geneva-based trade official confirmed that efforts were being made to meet with EU member states individually.
Nicoletta Dentico, Head of the Global Health Programme at Society for International Development (SID), told Geneva Health Files that several members of European Parliament are pushing to discuss the TRIPS waiver proposal. There are efforts being made to get a resolution so that the European Commission could consider it.
There have been efforts to get the Italian Presidency of the G20 to extend support to the TRIPS waiver proposal. Both India and South Africa, proponents of the proposal are members of the G20. Civil society groups are advocating the Italian presidency at the G20 to support the proposal, she added.
WHAT NEXT?
Next TRIPS Council formal meeting will be on 23rd February to work on a draft report for the General Council that meets in early March. Countries are expected to meet in smaller groups for bilateral discussions in the coming days.
The resistance to the TRIPS waiver proposal even in the midst of a pandemic continues to exist in many quarters not just at free-market media establishments. Some academics have called this a guerrilla war against IP rules.
See this excerpt from a recent Politico story:
Behind the spat at the WTO, a larger question looms: Is this an attempt to permanently override aspects of intellectual property rights that some countries disagree with?
“You can essentially see it as a play by two countries, India and South Africa, who never really liked the current intellectual property rights rules of the WTO,” said Simon Evenett, an economics professor at St. Gallen University in Switzerland. “I see it in a broader 25-year-long context of this sort of guerilla war against these rules.”
….“Almost every major pharmaceutical exporter except India has objected to this,” Evenett said. “I don’t see that proposal going ahead, unless circumstances dramatically change.
It is very likely that the current discussions at the TRIPS Council on the waiver proposal will eventually seek to move towards attempts to discuss broader rules on intellectual property, sources said.
The demand for a global solution is evident during this pandemic.
In its statement, South Africa said:
“These provisions were never designed to deal with pandemics that exist at the same time in all countries in the world. In these circumstances individual actions will not be effective and would have to be complied on a case- by-case individual basis. Such individual actions may nonetheless impede global solutions such as envisage by the TRIPS waiver proposal. Further, the flexibilities as they exist need further clarification to help us to react to pandemics such as COVID-19, clarification is required across the board ranging from copyright, to industrial designs, patents and undisclosed information…”
The stage is set.
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