Limited waiver
The concept of Trade Related Intellectual Property Rights, or TRIPs, had been the exclusive domain of legal, trade and health experts until Covid-19 hit the world and the acronym suddenly became dominant.
The global discussion on TRIPs and its waiver in the context of the escalating pandemic was triggered by India and South Africa that tabled a proposal at the WTO, seeking a waiver on TRIPsenforced protection on patents, treatment and technologies in October 2020. The purpose was to stimulate expedited production and supply of Covid treatments and vaccines to the Global South.
US President Joe Biden put his weight behind the proposal soon after his inauguration. Earlier, the proposal was endorsed by 65 developing countries as co-sponsors and another 100 as supporters. The proposal enjoyed the backing of hundreds of key NGOs, INGOs, ex-heads of state and public intellectuals. But despite such support for immediately waiving TRIPs protections amid a ravaging pandemic, the WTO took more than 20 months to reach a new deal that was seen as a case of too little, too late.
The drastically watered-down version of the agreement, in its current form, owes largely to the EU, some Western countries and the pharmaceutical industry that opposed the comprehensive waiver from the start. The powerful anti-waiver lobby managed to string out the discussion even amid a grave global health emergency which required urgent action. After much to and fro, an agreement was reached in June 2022 at the 12th ministerial meeting of the WTO.
The agreement fell well short of expectations of the Global South that seemed to have submitted to the accumulated power of the EU and other Western countries. The agreement was nodded through by the Global South countries despite last-minute appeals from international organisations and campaigners not to accept the deal in the form it was eventually approved. The agreement, as it stands today, only waives part of the TRIPs-related protection specifically for the Covid vaccine and that too for a limited period. This is hardly the outcome advocates were hoping for.
Though governments have hailed it as a sort of victory, campaign and advocacy groups have voiced serious reservations about the scope of the agreement, the hollowness of the victory being proclaimed and its limited long-term impact on affordability, production and supply of life-saving treatments and vaccine in future pandemics.
Medicines Law & Policy, a specialist research group, has termed the agreement's outcome a limited waiver and has raised questions as to whether it deserves to be called one in the sense of the comprehensive waiver contained in the original proposal. South Centre, a representative body for southern countries, has voiced a similar view of the agreement being narrow in scope and having limited applicability.
Moreover, the new agreement leaves out aspirations to waive protection on trade secrets, copyrights and industrial design which are central to affordable access to medicines and treatments worldwide. Third World Network sees the new agreement offering very little that is different from exemptions already enshrined in the earlier WTO agreements. The only thing new in the agreement is further simplification of notification requirements.
Médecins Sans Frontières has described the new agreement as sidestepping the key issue of pharmaceutical monopolies or easy pathways to affordable access to life-saving medical technologies and treatments. The new agreement in its current formulation will have potentially negative effects on future global health crisis.
More importantly, at the behest of the US, China has been barred from being the beneficiary of the waiver thro ugh specific language used in the agreement. Heal th advocates have voiced concern over the exclusion of an increasingly important global health player in vaccine production from the new agreement. Most worryingly, the new agreement prohibits re-exporting vaccines except for humanitarian purposes. This seems to further limit the scope of the original proposal.
Most significantly, the new agreement postpones discussion on Covid-related treatments and technologies to a six-month timetable. As with the new agreement, this deadline is unlikely to be met given the WTO's slow workings. Unless a broader TRIPs waiver is not agreed on, as envisaged in the original proposal of October 2020, a large portion of humanity will remain without affordable vaccines, treatments and diagnostics.