The WTO’s deadlock over an intellectual property waiver for COVID-19

Questions and explanations about why the waiver is proposed, why it’s opposed and what it would mean

Symbolic or effective: would the waiver make any difference? | pills by Volodymy Hryshchenko, Unsplash CC0

Update: In a remarkable turn-around on May 5, 2021, US Trade Representative Katherine Tai announced the US would support the waiver and negotiate based on a proposed text. The press release referred only to COVID-19 vaccines, not other products. Tai said:

This is a global health crisis, and the extraordinary circumstances of the COVID-19 pandemic call for extraordinary measures. The Administration believes strongly in intellectual property protection, but in service of ending this pandemic, supports the waiver of those protections for COVID-19 vaccines. We will actively participate in text-based negotiations at the World Trade Organization (WTO) needed to make that happen. Those negotiations will take time given the consensus-based nature of the institution and the complexity of the issues involved.

“The Administration’s aim is to get as many safe and effective vaccines to as many people as fast as possible. As our vaccine supply for the American people is secured, the Administration will continue to ramp up its efforts — working with the private sector and all possible partners — to expand vaccine manufacturing and distribution. It will also work to increase the raw materials needed to produce those vaccines
.”

More:
• After the May 2021 revised draft: WTO COVID-19 waiver: does the new draft move the talks forward?
• After the US announcement: The proposed COVID-19 intellectual property waiver: too soon to predict

By Peter Ungphakorn
POSTED DECEMBER 17, 2020 | UPDATED JULY 25, 2021

A petition with almost a million signatures was delivered to the World Trade Organization on December 9, 2020, calling for the WTO “to urgently ensure access to lifesaving Covid-19 vaccines, treatments and equipment for everyone in the world”.

We can overlook the fact that the WTO has no power to “ensure” anything of the kind. What the petition aimed to do was to support a proposal to waive WTO intellectual property rules temporarily where related to the COVID-19 pandemic.

The delivery was timed for the discussion the following day when members met as the Council for Trade Related Aspects of Intellectual Property Rights (the TRIPS Council). Since then, the proposal has gone nowhere.

“Licensing, she said, would be a ‘third way’, a means of defusing controversy over a proposal to waive intellectual property rights temporarily to deal with the pandemic. The WTO is essentially a forum for negotiations between governments. For it to actively work with private companies so they licence their intellectual property would certainly be new. Normally that is the role of the World Health Organization or GAVI.

“Perhaps India, South Africa and their allies would be content for their controversial proposal to be sidestepped in the interests of global vaccine production. Or perhaps they would see it as an unwanted deflection away from their long-standing attack on WTO rules on intellectual property rights, which they consider to favour rich countries and large companies.

“The membership’s initial reaction was muted. After she repeated the proposal in the General Council meeting on her first day in office, March 1, 2021, only one delegation out of about 30 speakers welcomed her proposal to talk to the private sector and even that one did not discuss voluntary licensing specifically, according to a WTO official.”

New WTO head’s first statements
sail close to the wind
,
February 18, 2021

The proposal was first submitted in October. WTO members are split between those supporting, those opposing, and those wanting more information with more time to digest it.

Without the necessary consensus no decision is possible.

Advocates had hoped that the proposal would be adopted at the General Council’s final meeting of 2020 — the General Council is the highest-level WTO body in between biennial ministerial conferences, and like almost all WTO councils and committees, it consists of all the organisation’s member governments.

As members remain deadlocked, the General Council came and went on December 16–18 without any agreement.

The failure was envisaged in an earlier WTO news story: a status report was submitted to the General Council meeting, “indicating the current lack of consensus on this issue and highlighting the common goal shared by members of providing access to high-quality, safe, efficacious and affordable vaccines and medicines for all.”

Discussions continue in the TRIPS and General councils in 2021.

This is an attempt at an explanation (see also this fact sheet on intellectual property and health).

Read on or jump down the page via these links:

Background in the WTO
What is the proposal? | What is a waiver? | Why no vote? | If agreed, what would countries have to do?

The waiver and its effects
Is this North versus South? | Is intellectual property really a hindrance?

Evidence
South Africa’s paper | MSF’s paper | ‘Unanswered’ questions | Bryan Mercurio’s paper

How does this fit in with other access policies?
The 2003 waiver | Other global actions on COVID-19

What happens now?

Further reading | All pieces tagged “WTO waiver”

COVID-19: SINGAPORE The National Public Health Laboratory (NPHL) was set up in March 2009 as part of the Communicable Disease Division with the Ministry of Health, Singapore. NPHL provides specialised laboratory tests to track changes in existing organisms, detect new and re-emerging diseases and respond to outbreaks. The lab is part of the WHO COVID-19 Reference Laboratory Network providing confirmatory testing for COVID-19.
Waiving protection: in order to protect | © WHO/Blink Media, Juliana Tan
Background in the WTOBack to top
What is the proposal?Back to top

Circulated in October 2020 by India and South Africa, the proposal is for a “waiver” that would allow countries to suspend some intellectual property protection temporarily where related to COVID-19.

The proposal lists specifically copyright, industrial design, patents, and trade secrets. That means the products concerned potentially include packaging, equipment for protection, treatment and diagnostics, and medicines and vaccines.

For those interested in the text, this is what the key parts say:

“In these exceptional circumstances, we request that the Council for TRIPS recommends, as early as possible, to the General Council a waiver from the implementation, application and enforcement of Sections 1 [copyright], 4 [industrial design], 5 [patents], and 7 [undisclosed information] of Part II of the TRIPS Agreement in relation to prevention, containment or treatment of COVID-19.”

And

“The waiver should continue until widespread vaccination is in place globally, and 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.”

What is a waiver?Back to top

Fundamental to the WTO are the negotiated agreements that member governments have signed. They define the multilateral trading system.

A waiver allows countries not to apply some provisions temporarily. In this case, it would allow them to suspend all intellectual property rights in those four areas — only “in relation to prevention, containment or treatment of COVID-19”.

Waivers are supposed to be time-limited. In practice some have to be renewed every year, while others are indefinite “until replaced”. This proposed waiver would have a fixed period, not yet defined.

The rules on waivers are in paragraphs 3 and 4 of Article 9 of the 1994 agreement setting up the WTO.

Again, for those who want the detail, this is what they say:

3.   In exceptional circumstances, the Ministerial Conference may decide to waive an obligation imposed on a Member by this Agreement or any of the Multilateral Trade Agreements, provided that any such decision shall be taken by three fourths4 of the Members unless otherwise provided for in this paragraph.

(a)    A request for a waiver concerning this Agreement shall be submitted to the Ministerial Conference for consideration pursuant to the practice of decision-making by consensus. The Ministerial Conference shall establish a time-period, which shall not exceed 90 days, to consider the request. If consensus is not reached during the time-period, any decision to grant a waiver shall be taken by three fourths4 of the Members.

(b)    A request for a waiver concerning the Multilateral Trade Agreements in Annexes 1A or 1B or 1C and their annexes shall be submitted initially to the Council for Trade in Goods, the Council for Trade in Services or the Council for TRIPS, respectively, for consideration during a time-period which shall not exceed 90 days. At the end of the time-period, the relevant Council shall submit a report to the Ministerial Conference.

4.   A decision by the Ministerial Conference granting a waiver shall state the exceptional circumstances justifying the decision, the terms and conditions governing the application of the waiver, and the date on which the waiver shall terminate. Any waiver granted for a period of more than one year shall be reviewed by the Ministerial Conference not later than one year after it is granted, and thereafter annually until the waiver terminates. In each review, the Ministerial Conference shall examine whether the exceptional circumstances justifying the waiver still exist and whether the terms and conditions attached to the waiver have been met. The Ministerial Conference, on the basis of the annual review, may extend, modify or terminate the waiver.

Why no vote?Back to top

WTO decisions are by consensus. The rules define consensus as no objection from any member present. It only takes one objection to block consensus.

The rules say that if there is no consensus, then members can vote. For a waiver, that requires three quarters of the membership to vote for it. But in the past WTO members have never voted*. On the rare occasions when some members suggested a vote to break a deadlock, this was rejected.

WTO decisions affect countries’ rights and obligations under the agreements. That’s why members want to stick to the consensus rule. No country wants to be in a minority that is forced to accept a majority decision against its will, particularly if the decision cannot be implemented domestically. That would cause havoc to the multilateral trading system.

Even when the deadlock is not obviously about rights and obligations — such as when selecting a new director-general for the Secretariat — members blocked a vote on the grounds this would set an unwelcome precedent.

* Once, in the WTO’s first months (July 1995), the General Council voted to accept Ecuador as a new member. See the minutes (page 8), and this document (footnote). This was quickly considered to be a mistaken reading of the rules since there was a consensus for that decision anyway. No other new member has been accepted by formal vote, always by consensus.

If agreed, what would countries have to do?Back to top

Nothing.

Nothing, except recognise that other countries have the right to suspend those intellectual property rights if they want to. If they don’t want to, no one else can do anything about it.

This is where the idea of the WTO “ensuring” access to medical products and treatments misses the point. The TRIPS Agreement sets minimum standards of intellectual property protection. A simple example: patents must be protected for at least 20 years.

A country can guarantee an inventor 150 years of patent protection. That would not violate the agreement’s 20-year minimum. But 15 years would. (I’m simplifying.)

So if patent protection is suspended, countries could still stick at 20 years.

And in reality, it’s unlikely that the US, EU, Switzerland, Japan and so on would change their intellectual property laws even if the waiver were agreed. A key argument they make is that intellectual property protection is necessary to produce the needed products that can be shared with everyone, if the policies are right.

And while we’re on the subject, most if not all countries wanting to make use of the waiver would have to revise their laws. WTO agreements do not apply automatically to members’ legislation. That also takes time.

Reaching everyone: Are intellectual property rights blocking access to COVID-19 treatments and diagnostics | GAVI/Karel Prinsloo
Reaching everyone: Are intellectual property rights blocking access to COVID-19 treatments and diagnostics? | GAVI/Karel Prinsloo
The waiver and its effectsBack to top
Is this North versus South?Back to top

Activists like to claim issues like this are about rich countries versus poor. In this case there’s some truth, but in general in the WTO, these divisions are never so clear-cut. The alignments, according to sources familiar with the meetings, are:

For the waiver — India and South Africa (authors of the proposal), Bolivia, Eswatini, Kenya, Mongolia, Mozambique, Pakistan, Venezuela (co-sponsors), supported by the African Group, Bangladesh, Cuba, Egypt, Indonesia, Jamaica, Nigeria, Sri Lanka and Tunisia.

Against — Brazil, EU, Japan, Norway, Switzerland, UK, US, and perhaps with some other developing countries.

Need more clarification and time to study — Australia, Canada, Chile, China, Ecuador, El Salvador, Mexico, Turkey, and Ukraine. Then on November 27, four of them — Australia, Canada, Chile and Mexico — circulated a paper asking the authors and co-sponsors eight questions about the facts, so that the discussion could be better informed.

Is intellectual property really a hindrance?Back to top

This goes to the heart of the debate, and is the reason why many countries are asking for more evidence. Advocates inside and outside the WTO have offered some examples. The key questions are about how the waiver might change the situation.

  • Would the countries concerned choose to suspend intellectual property protection? They don’t have to, and several are unlikely to
  • If the intellectual property protection is temporarily suspended in some countries, would those countries be able to make use of the technology? The answer seems to be in some cases yes, in others perhaps not — for example to manufacture biologically-created vaccines.

Note also that the WTO agreement includes more flexibilities for patents — compulsory licensing and government use (Article 31), and exceptions to rights conferred (Article 30), explained below. They also provide a route to bypass exclusive rights.

No equivalent flexibilities exist for copyright, industrial designs and trade secrets.

Two documents provide some examples, outside the WTO from Médecins Sans Frontières (MSF) and inside from South Africa.

What are the examples, and what are the questions some delegations say are still unanswered?

Gilead’s balm: Remdesivir is patented with limited licensing | Molecule by BaptisteGrandGrand, Wikimedia Commons CC BY-SA 4.0
Gilead’s balm: Remdesivir is patented with limited licensing | Molecule by BaptisteGrandGrand, Wikimedia Commons CC BY-SA 4.0
EvidenceBack to top
South Africa’s paperBack to top

South Africa’s paper focuses on patents. The examples it looks at include five selected antibody therapies and anti-viral medicines: REGN10933 & REGN10987 antibodies; Molnupiravir; AT-527; Baricitinib; Tocilizumab; plus four other medicines.

“Four are repurposed medicines that were developed for treating other diseases. Due to the interval between the time of patent filing and publication, which can take up to 18 months, new patent applications that might have been filed this year may emerge in the coming months,” the November 23, 2020 paper says.

One of the medicines has patent applications in: Albania, Argentina, Armenia, Azerbaijan, Belarus, Brazil, Canada, China, Egypt, Eurasian Patent Organization, EU, Colombia, Eswatini, Gambia, India, Israel, Georgia, Ghana, Japan, Kazakhstan, Kenya, S.Korea, Kyrgyz Republic, Lesotho, Liberia, Malawi, Malaysia, Mexico, Mozambique, Namibia, New Zealand, Nigeria, North Macedonia, Russia, Rwanda, Sao Tome and Principe, Serbia, Sierra Leone, South Africa, Sudan, Tajikistan, Tanzania, Thailand, Turkey, Turkmenistan, Uganda, Ukraine, Uzbekistan, Vietnam, Zambia, Zimbabwe.

South Africa does not indicate which of those countries would have the technological capacity to benefit from suspending patent protection (which may also need time for legislation), and whether that would be better than using the flexibilities already in the TRIPS Agreement. Those that oppose the waiver would presumably not use it.

Another has patents granted or filed in Albania, Australia, Canada, China, EU, Israel, Japan, S.Korea, Mexico, New Zealand, Norway, North Macedonia, Poland, Russia, Turkey, Ukraine, US. Patents have been blocked in: Brazil.

Any country not on that list (and Brazil) would be free to make generic versions if they had the technology.

The paper also looks at the limitations in voluntary licences on Remdesivir, BioNTech’s claims to rely on trade secrets in COVID-19 vaccine production, and disputes over patents, and it provides links to other databases.

MSF’s paperBack to top

MSF’s paper is clearer about the justification for a waiver rather than using the flexibilities already in the TRIPS Agreement.

“The ‘case by case’ or ‘product by product’ approach” needed when TRIPS flexibilities are used by each country “could be limiting during the pandemic,” the October 8, 2020 paper says.

“Some countries also face limitations with respect to their national laws, face pressures from their trading partners, or lack the practical and institutional capacity required to exercise TRIPS flexibilities during the pandemic quickly and effectively.”

It says the waiver is also needed because pharmaceutical companies refuse to offer non-exclusive licences, which would make the products available worldwide.

One example is Gilead’s Remdesivir: “Despite having received at least US$70.5 million of public funding to develop Remdesivir, one of the candidate drugs for COVID-19 treatment, pharmaceutical corporation Gilead has signed secretive bilateral deals with a few generic companies of its choosing that exclude nearly half of the world’s population from its licensed territories,” the paper says.

It looks in detail at various therapeutic medicines, vaccines, and diagnostics and includes MSF’s own experience in challenging patents, including on new uses for existing medicines.

Among the examples it offers are:

  • Problems in the Netherlands with testing kit reagents, with Roche claiming the recipe was a trade secret. Roche relented after the Dutch government threatened a compulsory licence
  • Problems with 3D copies of ventilator valves in Italy
  • Problems with N95 respirators in the US

All three are in developed countries that are unlikely to apply the waiver, even if it is agreed. In one, the threat of compulsory licence worked. MSF did not say how and where the waiver would help on 3D copies of ventilator valves.

And on the N95 respirators, it said: “Companies and others holding patents on important tools, including masks, should announce now that they will not enforce their patents so that healthcare workers on the front line of this pandemic can be protected.” In other words, the plea is to the companies.

Systems under stress: but the role of intellectual property is questioned | Alberto Giuliani, Wikimedia Commons, CC BY-SA-4.0
Systems under stress: but the role of intellectual property is questioned | Alberto Giuliani, Wikimedia Commons, CC BY-SA-4.0
‘Unanswered’ questionsBack to top

Australia, Canada, Chile and Mexico remained dissatisfied with the evidence. Their November 27, 2020 paper asks eight questions looking for specific examples:

1. What challenges have countries — or organisations acting for them — faced, if any, where intellectual property protection and the TRIPS Agreement impeded quick procurement of COVID-19 diagnostics, equipment, therapeutics or vaccines?

2. What challenges have they experienced in producing these products locally as a result of intellectual property protection and the TRIPS Agreement?

3. Have countries been obstructed from issuing compulsory licences for these products for any reason other than domestic legislation and if so why?

4. Have they been obstructed from using the 2003 waiver or 2005 amendment allowing compulsory licence for export (explained below) for these products for any reason other than domestic legislation and if so why?

5. What specific challenges caused by copyright protection have they experienced in procuring or seeking local production of these products, where TRIPS flexibilities could not help?

6. Similarly for industrial designs?

7. And similarly for trade secrets?

8. Since the TRIPS Agreement sets minimum standards, how would the waiver be applied in countries’ domestic laws and intellectual property regimes? If those measures were applied without the waiver, how would they be inconsistent with the TRIPS Agreement and its flexibilities?

The waiver’s proponents circulated this 12-page paper on January 15, 2021 replying to each of the eight questions. The answers are long on repeating the general arguments but short on actual experience in those eight situations.

On top of those questions from the four countries is the broader context.

A number of international programmes are busy mobilising resources to get COVID-19 quickly and affordably to everyone.

More money is needed. Pharmaceutical companies are rarely willing to share their intellectual property but they do license production, with some limits, and are prepared to pledge supplies for the global efforts.

How would the waiver fit in with that bigger picture?

(Proponents’ replies to other questions raised in meetings are being circulated, for example in this 30-page paper and this 3-page addition, both dated January 15, 2021.)

Bryan Mercurio’s paperBack to top

In February 2021, law professor Bryan Mercurio of the Chinese University of Hong Kong released a draft academic paper on SSRN (or use this direct link to the pdf file) arguing that the waiver is “unnecessary, would not alleviate the burden of access to effective and affordable medicines and vaccines and could potentially hamper [research and development] and innovation in the pharmaceutical sector”.

He argued six points:

  • An intellectual property waiver would undermine research and development, and innovation
  • Intellectual property rights have not hampered access to COVID-19 vaccines
  • Voluntary licensing and other initiatives are supporting access to COVID-19 vaccines
  • Existing mechanisms in the WTO intellectual property agreement effectively safeguard public health
  • A waiver assumes institutional capacity and good governance
  • Intellectual property enforcement is of vital importance to maintaining safety standards
Inapplicable? The 31 countries that have not ratified the 2005 amendment | WTO (map)
Inapplicable? The 31 countries that have not ratified the 2005 amendment | WTO (map)
How does this fit in with other access policies?Back to top

There are two points here: how effective the waiver might be, including past experience, and the bigger picture of other policies for COVID-19.

The 2003 waiverBack to top

The 2003 waiver. This is not the first time WTO members have debated a waiver on intellectual property and health. The first one was agreed in 2003, following several years of sometimes bitter debate, claims that the waiver would be essential to save lives and even an intervention from the Holy See (the Vatican — the only state that is an observer in the WTO without seeking membership).

‘INELIGIBLE’
A negotiation to convert the 2003 waiver into a proper amendment ended in 2005 following similarly fraught debates about whether the conditions were too onerous. It was also argued vociferously that the amendment was needed in order to save lives.

In the end, the amendment was a direct translation of the waiver. That proved to be the only consensus middle ground. All essential provisions were identical. The value of the amendment was to create legal certainty by making the provisions specifically part of the TRIPS Agreement.

It took another 11 years for the amendment to take effect — it needed two thirds of the membership to ratify.

But, even now, 31 developing and least developed countries are not eligible to import under the amendment.

Receiving little attention is the fact that amendments to WTO agreements only take effect in countries that have ratified.

So 15 years later, the amendment still does not apply to Angola, Chad, Cameroon, Congo (Democratic Rep.), Ecuador, Ghana, Guatemala, Liberia, Namibia, Mozambique, Somalia, South Sudan, Tunisia, Venezuela, Yemen, Zimbabwe, and more. Why? Because they themselves have not yet ratified it.

The WTO website has two versions of the TRIPS Agreement: “Annex 1C  Trade-Related Aspects of Intellectual Property Rights (TRIPS) (unamended version) and TRIPS Agreement (as amended on 23 January 2017)”

The twist? The 31 countries can still import under the 2003 waiver!

The waiver makes it easier for disadvantaged countries to import generic medicines from richer countries. The blockage was actually on the export side. The TRIPS Agreement says that if governments are to bypass patent protection by issuing something called a compulsory licence, then most of the production must be for domestic use. This severely restricts exports of compulsorily-licensed generics.

The 2003 waiver suspends that provision for exports to countries that are unable to make the products themselves, provided some conditions are met to ensure the compulsorily-licensed products, particularly to prevent the them being diverted to the wrong markets. These include distinctive packaging, and transparency through notification to the WTO and its members.

After all that, the waiver — or its translation into a TRIPS Agreement amendment (see box) — has only been used once, when Canada issued a compulsory licence for 15.6 million antiretroviral tablets to be exported to Rwanda. Shipments were in 2008 and 2009.

Why only once? Critics say the conditions are too tough. India called them “extremely onerous and time-consuming”. But part of the problem in Rwanda’s case was because of the time taken for the new Canadian law to be passed to accommodate the waiver. Once that was enacted, the Canadian government said its side of the process was quick.

Rwanda then spent some months going through its internal procurement procedure where Indian-made generics were initially cheaper.

The need to notify the WTO and the special packaging is also sometimes described as too onerous. But the notification requirement is the most lenient in the WTO, and not needed for a least developed country like Rwanda.

And the packaging used by the Canadian manufacturer was simply white instead of blue with “XCL” printed on it. (Details are in this technical note, taken from this page.)

It’s unclear why other countries have not followed Rwanda’s example. MSF just says it’s too complicated. All the heat generated in the debate over the 2003 waiver turned out to have had little impact in the real world.

In the end this might be because other ways of supplying medicines at affordable prices are more effective than removing an obstacle in intellectual property rules.

The broad range issues on access to affordable health products have been discussed for several years now in collaboration between the WTO, World Health Organization and World Intellectual Property Organization.

COVID-19: THAILAND WHO Thailand representatives, health medical officers and health volunteers are home-visiting a patient in Bang Phut Sub District, on 23 September 2020.
Global mobilisation: health officials and volunteers on home visits | © WHO/Ploy Phutpheng
Other global actions on COVID-19Back to top

A number of international organisations have mobilised global action on COVID-19. This involves governments, health organizations, scientists, businesses, civil society, and philanthropic foundations.

Two organisations are central to this worldwide: the World Health Organization (WHO) and GAVI, the vaccine alliance. Briefly:

The WHO coordinates an “Access to COVID-19 Tools (ACT) Accelerator” in collaboration with the Coalition for Epidemic Preparedness Innovations (CEPI), Gavi (the Vaccine Alliance), the Global Fund to Fight AIDS, Tuberculosis and Malaria (Global Fund), Unitaid, the Foundation for Innovative New Diagnostics (FIND), the Wellcome Trust, the World Bank Group and the Bill & Melinda Gates Foundation.

The programme works on four pillars (these figures and text are from November 19, 2020, in the FAQ page):

  • The diagnostics pillar has invested in innovation for faster, more accurate, affordable and easier-to-use tests, boosting manufacturing capabilities, and ensuring that tests are scalable. They’ve evaluated over 50 diagnostic tests, and on 28 September 2020, ACT Accelerator partners announced that they would make 120 million affordable, quality COVID-19 rapid tests available for low- and middle-income countries.
  • The therapeutics pillar aims to find the most promising treatments for everyone across the world and ensure that the most marginalised communities can access the benefits too. It is analysing over 1,700 clinical trials for promising treatments and has secured dexamethasone for up to 2.9 million patients in low-income countries. It has also secured an agreement to help facilitate future access to monoclonal antibody therapies in low- and middle-income countries.
  • The vaccines pillar — also known as COVAX — represents ­­the largest and most varied portfolio of COVID-19 vaccines globally and which currently contains over 10 vaccine candidates. The pillar also launched the COVAX Facility for global procurement of vaccines, with over 180 countries engaged.
  • The health Systems connector has surveyed over 100 countries to identify health system bottlenecks and capacity gaps and mapped the systems requirements for COVID-19 tool delivery in 4 out of the world’s 6 regions.

The WHO says the accelerator has received commitments worth US$5.1 billion, but urgently needs $4.3 billion more, and another $23.9 billion in 2021, if tools are to be deployed across the world as they become available.

GAVI is one of the lead coordinators of the vaccine pillar (COVAX). It is active around the world both in acquiring vaccines (including for COVID-19 through COVAX) and delivery via health systems and infrastructure. In June 2020 the UK hosted a donor pledging conference — the Global Vaccine Summit — which raised $8.8bn in new  commitments, and $500m for COVID-19 via COVAX. The UK is GAVI’s largest donor.

This is not the place to go into more detail. But it’s these kinds of activities that would actually “ensure” everyone has access to affordable vaccines, treatments and equipment, not tinkering with minimum standards of intellectual property protection that create no new obligations or commitments.

(See for example this Reuters report on some of the obstacles for vaccines, and this from COVAX on the challenge in Africa. Neither of them mention intellectual property, although it’s true that the WHO, an observer in the TRIPS Council, does support the waiver.)

What about the WTO? Apart from the debate over intellectual property, the WTO’s main focus has been on keeping supply chains open for food and medical supplies and monitoring the full range of trade barriers, subsidies and other trade polices related to COVID-19, including on intellectual property.

COVID-19: LAO PDR Abbot Ven. Dr Daosadeth Leutmany leads the morning prayers at New Sokkham Temple (Watmaisokkham) in Vientiane. The World Health Organization (WHO) is supporting Lao People’s Democratic Republic (Lao PDR) to expand the country’s capacity to rapidly detect, test, contact trace and treat cases of COVID-19. It has helped to train staff at hospitals and clinics across the country on how to safely manage and treat COVID-19 patients. WHO has also supported the Ministry of Health in stepping up risk communication and community engagement about COVID-19. Buddhist monks are highly respected, highly trusted and present at the village level in communities across the country. The Lao Buddhist Fellowship Organization has been an important ally in communicating messages on how to prevent COVID-19 as well as fighting stigma and calming fear and anxiety.
Prayers: is consensus possible at all? | © WHO/Blink Media, Bart Verweij
What happens now?Back to top

The WTO news story says: “The next formal meeting of the TRIPS Council is scheduled for 10–11 March 2021. In order to allow for further consideration of the waiver request in the more immediate future, the chair proposed to consider meeting [informally] in January and early February to advance discussions.”

If consensus is achieved, the waiver would go to the General Council for a decision.

But there’s no sign that either side is going to budge, or that there’s any middle ground available for a compromise. This may well stay unresolved beyond the proposed time of “when widespread vaccination is in place globally, and the majority of the world’s population has developed immunity”.

Which leaves us with some final unanswered questions.

Is this a futile waste of time and energy? Wouldn’t it be quicker and more effective for governments to focus on getting medicines, vaccines and equipment speedily worldwide by other means? Shouldn’t activists be pressurising rich countries’ governments to keep their promises to do that, and to make that pledge if they haven’t already?

And in the WTO wouldn’t it be more useful for delegations to concentrate on other work related to COVID-19, particularly monitoring and transparency, and keeping trade and supply chains as open as possible?


See details of the TRIPS Council chair’s report, and South Africa’s statement in The General Council, December 16, 2020 from KEI Online.

See also links on this page, and follow WTO TRIPS Council news here.


Further readingBack to top

All pieces on this blog tagged “WTO waiver” are listed here.


Updates:
July 25 and May 9–10, 2021 — adding: link to blog posts on the new US position and the revised draft waiver text; expanding “Further reading”
May 5, 2021 — US Trade Representative Katherine Tai’s statement supporting the waiver for vaccines
March 2, 2021 — minor editing reflecting continuing talks in 2021, sidebar on Ngozi Okonjo-Iweala’s alternative proposal
February 21, 2021 — adding the section on Bryan Mercurio’s paper
January 15–18, 2021 — adding proponents’ papers answering questions raised
December 18–19, 2020 — reflecting the General Council meeting extending into December 18 because of a large agenda; adding “further reading”; minor editing for clarity.

Photo/image credits:
• Pills by Volodymy Hryshchenko, Unsplash CC0
• Lab COVID-19 confirmatory testing, National Public Health Laboratory (NPHL) Singapore © WHO/Blink Media, Juliana Tan
• Children waiting to be vaccinated, GAVI/Karel Prinsloo (Tanzania 2014, measles-rubella vaccinations)
• Remdesivir molecule by by BaptisteGrandGrand, Wikimedia Commons CC BY-SA 4.0
• Doctor in Pesaro, Italy by Alberto Giuliani, Wikimedia Commons, CC BY-SA-4.0*
• Amendment acceptance map: WTO
• Home visits in Thailand © WHO/Ploy Phutpheng. Full caption: WHO Thailand representatives, health medical officers and health volunteers are home-visiting a patient in Bang Phut Sub District, on 23 September 2020
• Temple in Laos © WHO/Blink Media, Bart Verweij. Full caption: Abbot Ven. Dr Daosadeth Leutmany leads the morning prayers at New Sokkham Temple (Watmaisokkham) in Vientiane

* Full caption: Doctors and nurses of the intensive care hospital, fighting COVID-19 emergency in Pesaro – Italy. They are portraited at the end of their long workshift. 12 hours with no drink and no toilet break, due to the protective suit they wear. The signs on their face are caused by the masks they have to wear to protect themselves from COVID virus. In the picture: Annalisa Silvestri, doctor anaesthetist on the floor in a hospital corridor

Thanks to WHO and GAVI for permission to use their photos

Author: Peter Ungphakorn

I used to work at the WTO Secretariat (1996–2015), and am now an occasional freelance journalist, focusing mainly on international trade rules, agreements and institutions. (Previously, analysis for AgraEurope.) Trade β Blog is for trialling ideas on trade and any other subject, hence “β”. You can respond by using the contact form on the blog or tweeting @CoppetainPU