Pressure grows on WTO to show its human face on TRIPS waiver

Intellectual property rights

Geneva, 2 Dec (D. Ravi Kanth) – Pressure is mounting on the World Trade Organization to demonstrate that it has a “human face” by resolving the issue of the temporary TRIPS waiver to fight the growing threat posed by “vaccine inequity” and “vaccine apartheid” that seems to have contributed to the emergence of the new Omicron variant of the SARS-CoV-2 virus that causes COVID-19.

Over the last 26 years, the WTO has become a virtual “prisoner” of the TRIPS Agreement that overly benefits Big Pharma under the somewhat dubious goal of supporting innovation, according to several studies by scholars, jurists, and parliamentarians among others.

Barring the Doha Declaration on the TRIPS Agreement and Public Health of 2001, which was negotiated to address the HIV/AIDS, tuberculosis, malaria, and other epidemics, there has not been any way out from the ironclad TRIPS Agreement.

The 64 co-sponsors of the proposal on the temporary TRIPS waiver (IP/C/W/669), led by South Africa and India, offered a way out in October 2020 by seeking to suspend the implementation of certain provisions in the TRIPS Agreement relating to copyrights, industrial designs, patents, and protection of undisclosed information for a period of three years for ramping-up production of diagnostics, therapeutics, and vaccines to fight the worsening COVID-19 pandemic.

In the face of a groundswell of international support from more than 100 civil society groups, parliamentarians, former leaders, and Nobel Laureates, the demand for an urgent WTO response to the pandemic based on the temporary TRIPS waiver has become a global reality.

INFORMAL GENERAL COUNCIL MEETING

At an informal General Council (GC) meeting on 30 November, many developing countries, including India, South Africa and Indonesia, called for continuing the work on the WTO’s response to the pandemic by focusing on the much-delayed temporary TRIPS waiver, said people familiar with the development.

Apparently stung by the emergence of the new Omicron variant of the SARS-CoV-2 virus that could undermine the global economic recovery and pose serious health risks, the chair of the WTO’s General Council, Ambassador Dacio Castillo from Honduras, convened the GC meeting to discuss his proposed three options following the postponement of the WTO’s 12th ministerial conference (MC12) that was scheduled to begin in Geneva on 30 November, said people who took part in the meeting.

At the meeting, the GC chair proposed three options for members’ consideration. They include: (1) to continue work on the WTO’s response to the pandemic; (2) to not do anything until MC12 is re-convened; and (3) to issue a simple communique to be drafted by the GC chair that would suggest the way forward on the WTO’s response to the pandemic, said people, who asked not to be quoted.

More than half the members that made interventions at the meeting said they prefer the GC chair’s first option on continuing the work on the WTO’s response to the pandemic, by focusing on the TRIPS waiver.

India said that the trade envoys could consult with their capitals in the next two weeks for empowering them to negotiate on the TRIPS waiver on an expeditious basis.

South Africa, Indonesia, Mauritius, on behalf of the African Group, Jamaica, on behalf of the ACP (African, Caribbean, and Pacific) group, Pakistan, Egypt, Bangladesh, and Venezuela among others apparently aligned themselves with India’s statement, emphasizing the need for an urgent resolution to the TRIPS waiver, said people, who asked not to be quoted.

The United States, in its intervention at the meeting, said that it would prefer the chair’s second option of not doing anything until there is clarity on the re-convening of MC12.

More importantly, the US said members need to be cautious and to stay safe given the pandemic, said a person, who asked not to be quoted.

The European Union seems to have preferred the GC chair’s third option on issuing a simple communique with emphasis on pursuing work on the issues to be resolved at MC12.

Only a few countries apparently supported the EU’s call for a simple communique at this juncture, said people, who asked not to be quoted.

Brazil apparently proposed a somewhat ambiguous fourth option that seeks to empower the WTO Director-General to play an important role, in the formation of a new task force, notwithstanding the DG’s failure to prevail on Big Pharma in addressing “vaccine inequity” and “vaccine apartheid,” said people, who asked not to be quoted.

CONTEXT OF A “HUMAN FACE”

Interestingly, at a time when attempts are being made to continue the fisheries subsidies negotiations, as demanded by the DG, the GC chair must have realized the importance of the WTO’s response to the pandemic after the Omicron variant got heightened attention worldwide, said people, who asked not to be quoted.

If the WTO is to have a “human face”, then it must prove that by resolving the issue of the TRIPS waiver on an emergency basis, said several commentators in the Guardian newspaper over the last few days.

It appears that some members such as the EU seem to be worried that if members focus only on the WTO’s response to the pandemic, then it could undermine the trade-off that some of these members were considering between an outcome on fisheries subsidies, on the one side, and the WTO’s response to the pandemic with an IPR component, particularly the TRIPS waiver, on the other, said people, who asked not to be quoted.

US POSITION ON WAIVER “CONFUSING”

In a similar vein, the US is yet to finalize its position on the TRIPS waiver, namely, as to whether it would cover all health-related products or only vaccines.

At a White House briefing on 30 November, the spokeswoman Jen Psaki said that President Biden continues to support the proposed TRIPS waiver.

However, she noted that there is a limit to the US ability to see the waiver adopted, because the WTO is a consensus-based organization.

“We have been working to build that consensus,” she said, adding that “we’ve said from the beginning it would take some time.”

Probably, the US stance on the waiver seems like hiding behind the EU, Switzerland, and the UK, which are obstructing the progress of text-based negotiations based on the revised draft proposal (IP/C/W/669/Rev.1) submitted by the 64 co-sponsors on 25 May 2021, said a person, who asked not to be quoted.

Also, the US seems to be opposed to the issue of export restrictions in the draft decision proposed by the GC- appointed facilitator on the WTO’s response to the pandemic, Ambassador David Walker from New Zealand, said people, who asked not to be quoted.

Furthermore, several industrialized countries, particularly the EU, appear to be more interested in trading-off the TRIPS waiver with the proposed WTO reforms, said people, who asked not to be quoted.

At the end of the GC meeting, the chair asked members to focus on the dates for MC12 and the way forward. The GC chair intends to hold a heads of delegation (HoD) meeting on Thursday.

“TRILATERAL PARTNERSHIP”

Meanwhile, in a separate development, the US, the EU, and Japan on 30 November renewed their “Trilateral partnership cooperation” ostensibly to “address global challenges posed by non-market policies and practices of third countries”, as well as on WTO reforms, all allegedly aimed at targeting China, said people familiar with the development.

Apparently, the trade chiefs of the three members had initially planned to issue their statement at the ministerial meeting on 30 November, the first day of the now-postponed MC12.

With the postponement of MC12, they have issued it virtually, said people familiar with the development.

Unlike the Trump administration’s Trilateral approach in 2019, the Biden-Harris administration has brought the issue of trade and labour into the new Trilateral cooperation.

According to the 2019 Trilateral statement pushed by the former US Trade Representative (USTR) Ambassador Robert Lighthizer, the main elements of the Trilateral cooperation were focused on (1) “non-market policies and practices”; (2) “market-oriented conditions”; (3) “industrial subsidies and state-owned enterprises”; (4) “forced technology transfer”; (5) “World Trade Organization reform”; and (6) Digital trade and e-commerce.

In sharp contrast, the current USTR Ambassador Katherine Tai has focused the work with Japan and the EU in three areas.

These three areas include:

* Identification of problems due to non-market practices;

* Identification of gaps in existing enforcement tools, and where further work is needed to develop new tools to address such practices, as well as discussing cooperation in utilizing existing tools; and

* Identification of areas where further work is needed to develop rules to address such practices.

According to the statement issued on 30 November, the three “Ministers instructed their staff to advance in parallel on all three focus areas and agreed to review progress regularly.”

More importantly, the “Ministers highlighted the importance of WTO reform in an effort to build a free and fair rules-based multilateral trading system that benefits all its members and helps secure shared prosperity for all and reaffirmed their shared commitment to a successful 12th WTO Ministerial Conference, to be held in due course.”

Surprisingly, they did not include their proposed controversial WTO reforms including changing the negotiating function of the WTO based on the removal of the consensus-based decision-making process, differentiation among developing countries for availing of special and differential treatment (S&DT), legalizing the informal plurilateral Joint Statement Initiatives (JSIs) on digital trade, investment facilitation, disciplines for MSMEs (micro, small, and medium enterprises), and trade and women’s economic empowerment among others.

Perhaps, these issues will enter into the negotiations when the new dates for MC12 are announced.