A second life for the TRIPS waiver proposal
October 2 has considerable salience for India. Harnessing Mahatma Gandhi’s global appeal, Indian diplomacy, at times, signals global initiatives linked to his date of birth. In 2007, at India’s behest, the United Nations (UN) designated October 2 as International Day of Non-Violence. On October 2, 2016, India deposited its instrument of ratification of the Paris Agreement on Climate Change. Last year, on October 2, India paired with South Africa and submitted to the World Trade Organization (WTO) a proposal for a waiver so that, while responding to the pandemic, members do not have to implement, apply and enforce certain provisions of the Trade Related Intellectual Property Rights (TRIPS) Agreement.
The idea was that a short-term waiver would allow countries to ramp up the production of medical products, including vaccines, therapeutics and equipment required to treat Covid-19. The hope was that it would result in “fair, equitable and affordable access” and, thereby, save lives. The proposal gathered the co-sponsorship of 60 states and the support of more than 100 states, besides a large swathe of civil society across the globe. However, it was only after the Joe Biden administration expressed support, on May 5, 2021, for waiving intellectual property rights for Covid-19 vaccines that the prospects of the initiative have brightened.
Rewind to October 2, 2020. The Covid-19 pandemic had then been raging for more than eight months, and 38 million people had been infected. A million lives were already lost. Most economies were in dire straits. Despite the pandemic endangering lives and livelihoods, vaccine nationalism was reigning. Although WTO requirements stipulate an outcome in 90 days, the waiver proposal did not even move to text-based negotiations — the normal format of serious multilateral consideration.
The European Union (EU), United Kingdom (UK), Canada, Japan and Switzerland, including, of course the Donald Trump administration, as well as Brazil and Singapore, were staunchly opposed to the proposal. They argued that available tools such as voluntary licensing or the COVAX initiative and existing TRIPS “flexibilities” such as compulsory licensing were adequate to address the issue, and that intellectual property rights were not an impediment to increased production of medical requirements. Instead, they cited constraints such as export restrictions and limited availability of raw materials, as well as, a paucity of manufacturing capacities as having a more adverse impact than patent protections on the world’s ability to increase vaccine production. They pointed out that if and when such issues were addressed, the complex technological processes were not amenable to easy replication without considerable hand-holding.
Fast forward to May. The death toll from Covid-19 exceeds three million. The number of infected has gone beyond 150 million. Existing tools have not proved adequate in containing the virus in many geographies. In less than five months of 2021, 1.4 million people have died, while during the whole of 2020 there were 1.8 million deaths. This year, the virus is projected to wreak more havoc than last year.
All this was happening while the Biden administration was considering how to effectuate a pre-election commitment, which candidate Biden said was “the humane thing in the world to do”. Burgeoning grassroots advocacy ensured support among Democratic members of Congress. However, the conventional wisdom was that the United States (US) would not take a position opposed by its powerful pharmaceuticals lobby.
It was the devastating second wave of Covid-19 in India that was a factor in bringing the subject back on the global agenda. Prime Minister Narendra Modi, in a telephone conversation with Biden on April 26, was among the few who were reported to have raised it at the highest level, even as the US inter-departmental process was underway. According to reliable reports, influential members of the Biden administration were opposed. However, the argument that seems to have prevailed was that it was a low-risk option to meet a popular election commitment and also to secure a diplomatic gain for the Biden administration, which had come under fire for not exporting more vaccines and failing to respond quickly enough to the unfolding crisis in India.
The US decision has provided a second wind to the waiver proposal. A revised submission by India and South Africa, accommodating some concerns, is on the cards. For example, the US is willing to waive patents on vaccines, while the initial proposal included much more. Countries such as Brazil and New Zealand have shifted to support the US as has the Gates Foundation. The UK, Canada and Japan, who usually follow the US lead, are quiet. The EU, remains skeptical and willing only to “discuss” proposals as influential European leaders remain opposed.
There is still a long way ahead. The timeframe for the start, let alone the end, of the negotiations is uncertain. Given the consensual nature of any outcome, it may leave much to be desired. An outcome, if any, will not come in time to address the current situation. However, public health is now a primary long-term concern for India.
We need to leverage diplomatic ties to enhance health infrastructure beyond obtaining relief supplies. India has the potential to absorb health-related international opportunities for the benefit of its people and to offer them as global public goods also. Hence, as we did with the EU, pursuing a revitalised waiver proposal with greater zest than before with Brazil, Russia, India, China, and South Africa (BRICS), Quad and G20 makes sense, even if we fall short.
On this, the majority of 164 members of the WTO and global public opinion are on our side. Translating such goodwill into an internationally acceptable agreement is the challenge ahead not only for Indian diplomacy but also for the multilateral system which needs to demonstrate the ability to facilitate delivery of global public goods.