By Peter Ungphakorn
POSTED JANUARY 10, 2022 | UPDATED JANUARY 11, 2022
India’s call for an online WTO ministerial meeting to discuss the proposed intellectual property waiver for COVID-19 fell well short of consensus at an informal General Council meeting today (January 10, 2022).
Many delegations countering that members would have to be much closer to agreement on the proposed waiver before a meeting of ministers would be able to contribute to a solution, said sources familiar with today’s discussion of just over two hours.
Many also argued that the proposed format — for the ministers to convene virtually — would be the least likely to produce any results because interaction would be almost impossible.
Large meetings in person are not practical for now — and periodically prohibited — in Switzerland, where COVID-19 cases are soaring (see below). Restrictions on travel and on gatherings forced the WTO to postpone an official Ministerial Conference originally scheduled for November 3o to December 3 last year.
Today’s informal General Council session was called at India’s request. Because it was informal, there are no minutes. With no consensus, the chair, Ambassador Dacio Castillo of Honduras, said he would continue to consult members on the proposal.
In mid-December, WTO Director-General Ngozi Okonjo-Iweala arranged meetings of a group of four ministers — the US, EU, India and South Africa — in the search for a way to break the deadlock. Then on December 23, India asked the General Council chair to call today’s session.
Sources say a number delegations used today’s meeting to complain about being left out of the small group consultations — including Australia, Japan, Switzerland and the UK. Several questioned whether it was right to hold meetings of a small group of ministers in fully member-driven organization. The WTO has 164 members.
India argued that a ministerial meeting at this stage would help guide delegates in Geneva. A number of developing countries supported India, such as Pakistan, Sri Lanka, Bangladesh and Vietnam, sources said.
Most said a meeting of ministers would only be useful if gaps in Geneva were considerably narrower.
Any virtual Ministerial should take place only once there is a consensus both on intellectual property rights and on the Declaration and Action Plan on the wider pandemic response
The delegations sceptical about whether the proposed meeting would achieve anything included: countries opposing the waiver such as the EU, Switzerland and the UK; those that are ambivalent about the proposed waiver in its present form such as the US; and some that support the waiver, such as the African, Caribbean and Pacific group.
The only previous online meeting of ministers from the whole WTO membership was on July 15, 2021 in the fisheries subsidies negotiations. Over 100 ministers spoke, the sequence determined by time-zone, and each with a three-minute slot. There was no dialogue or interaction. The ministers simply read prepared statements.
Some delegations said that if ministers were to meet, they should also discuss other issues such as fisheries subsidies, where members are closer to agreement, and the full range of responses to the COVID-19 pandemic, sources said.
India and South Africa first proposed the “TRIPS” waiver in October 2020. It would relieve members from having to protect patents and other forms of intellectual property rights under the WTO agreement, in order to deal with the COVID-19 pandemic.
(“TRIPS” is the acronym for the official name of the agreement —
Trade-Related Aspects of Intellectual Property Rights.)
Even if the waiver were agreed, members would not be obliged to stop protecting the relevant intellectual property. They would be free to choose whether to protect or not.
The present deadlock is not only about the idea of a waiver in general, but the details of the present draft, which India and South Africa circulated in May 2021.
When the US announced in May 2021 that it supported the waiver, proponents’ hopes were raised that it might be accepted. However, the US was ambivalent about the details, and members have barely shifted from their original positions.
Among members’ differences are: how long the waiver should last and whether it should only be terminated by consensus, which types of intellectual property should be waived protection (only patents, or other types as well), which products (only vaccines, or other products as well), and other details such as how trade secrets should be handled.
WTO members are also discussing a broader package of ideas for a response to the pandemic, including how to keep supply chains open and to discipline export restrictions. They are deadlocked over this as well, including what the broader package should say about intellectual property.
COVID-19 and meetings in Switzerland
“Large meetings in person are not practical for now — and periodically prohibited — in Switzerland, where COVID-19 cases are soaring.” This was the situation in Switzerland on January 10, 2022:
Updates: January 11, 2022 — adding quote and link to EU statement, Swiss COVID-19 situation
WTO building | the author, licence CC BY-SA 4.0
Informal General Council meeting, January 10, 2022 | WTO
Screenshot of charts of COVID-19 in Switzerland | Swiss Federal Public Health Office, January 10, 2022