Inconsistencies in the opposition to the TRIPS Waiver

It has become increasingly inconsistent for the EU, the U.S., and others, to oppose the TRIPS waiver proposal at WTO. Prevailing production bottlenecks in the EU have demonstrated the costs of such inconsistencies.

This has come to a stead now, with the new EU export regulations that went through a hasty birth late last week, to finally re-emerge over the weekend even as the damage had already been done.

It is telling how impossible it is to separate matters of public health from the politics. Competition for vaccines has taken on a color that few would have predicted even late last year. Germany and France, prominent donors to WHO, pushed for export controls as the EU regulation was being hashed out.

Image credit: Photo by Gabby K from Pexels

As the EU has come to realize, problems in the scaling up of manufacturing of complex products such as vaccines has actively hurt the response to the pandemic. Belatedly, we have seen examples of Novartis and Sanofi step up to produce vaccines of other companies.

Why then would the EU continue to oppose plans at WTO’s TRIPS Council to liberate protected manufacturing practices which would help manufacturers worldwide to step in and meet demand for the production of vaccines, while creating capacities for the future?

While the burden of the pandemic continues to deepen in the U.S. and the E.U, and other parts of the world, the argument that vaccines are a priority in only certain parts of the world given the intensity of current transmission is a fallacious one, given the unpredictability around the variants of SAR-CoV-2.

EU says its export restriction rules will not have an impact on the deliveries to the COVAX facility.

COMMISSION IMPLEMENTING REGULATION (EU) 2021/111 of 29 January 2021 making the exportation of certain products subject to the production of an export authorisation [published 30th January 2021):

(10) Based on the principle of international solidarity, exports to enable the provisions of supplies in the context of humanitarian emergency response, exports to the COVAX facilities, and in particular to low and middle-lower income countries given their vulnerability and limited access to vaccines, exports of COVID-19 vaccines purchased and/or delivered through COVAX, UNICEF and PAHO with destination to any other COVAX participating country and exports of COVID vaccine purchased by Member States under the Union’s APAs and resold or donated to a third country should be excluded from the export authorisation requirement.

But who knows how this will pan out in practice? Many political institutions are under pressure from a variety of sources.

Even before the export restriction rules came last week, Charles Michel of the European Council suggested recourse to Article 122 under which EU states could legally take “measures appropriate to the economic situation, in particular if severe difficulties arise in the supply of certain products ”. Michel is President of the European Council, the institution which sets the political direction for EU member states.

So while there seems to be an appetite within the EU for legal measures to address the demand for vaccination and to be answerable to the public, there is no corresponding position to the same challenges at the multilateral level.

At a press briefing last week, WHO officials noted that while the agreements of manufacturers with COVAX may be safe, “the real question is of volumes.” WHO has suggested that countries have been told about “indicative allocations” based on projections from manufacturers and preferences made by countries, but hinted that volumes could be subject to production glitches as witnessed recently. (In response to a rising number of questions on the allocation of vaccines, WHO DG Tedros suggested yesterday, that providing information on exact country allocations of vaccines cannot happen through the media and that there was a dedicated channel with countries for communicating this information.) Clearly, the pressure is building everywhere.

The export bans discussion has triggered concerns on whether it will affect access to vaccination and as a result, influence the epidemiology of the disease. Seldom has trade been more inextricably linked with health.

(The current circumstances also prompted WTO this week to step in and call for international cooperation for vaccination.)

The TRIPS Waiver discussions may have received an inadvertent boost on the back of EU’s vaccination woes.

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Geneva Health Files

Geneva Health Files

A newsletter from the capital of global health, reporting on politics, policies and power.