Developing countries upbeat on TRIPS waiver negotiations

Geneva, 18 Jun (D. Ravi Kanth) – The proponents of the TRIPS waiver on 17 June expressed optimism on the intense schedule of meetings being convened by the chair at the World Trade Organization (WTO) for text-based discussions on the revised textual proposal that was submitted by the 63 co-sponsors in combating the COVID-19 pandemic, said people familiar with the development.

The revised proposal (IP/C/W/669/Rev.1) submitted by the 63 co-sponsors on 25 May has set the ground for negotiating a temporary waiver for suspending the implementation of certain provisions in the WTO’s TRIPS Agreement relating to copyrights, industrial designs, patents, and protection of undisclosed information for a period of at least three years.

The objective of the waiver is to ensure “the global need for unimpeded, timely, and secure access to quality, safe, efficacious and affordable health products and technologies for all, for a rapid and effective response to the COVID-19 pandemic and consequently the urgent need to diversify and scale-up production to meet global needs and promote economic recovery.”

At the informal TRIPS Council meeting on 17 June, South Africa, India, Indonesia, China, Tanzania on behalf of the African Group, and several other developing and least-developed countries drove home a powerful message that a delay in reaching an agreement on the waiver would escalate the loss of lives across countries.

“We should count the cost of these negotiations in lives, the longer it takes us to conclude these negotiations, the more people are likely to die,” said Mr Mustaqeem De Gama, South Africa’s TRIPS negotiator.

The COVID-19 pandemic has already resulted in more than 3.8 million deaths with over 177 million registered cases across countries. The rapid mutation of the SARS-CoV-2 virus and the lack of equitable access to vaccines, particularly in the developing and least-developed countries, has intensified the worsening health crisis.

In response to the chair of the WTO’s TRIPS Council Norwegian Ambassador Dagfinn Sorli’s proposed calendar of meetings set to begin next week, members echoed their varying levels of expectations, with the proponents of the TRIPS waiver arguing that the text-based discussions must be concluded by the fourth week of July.

TRIPS CHAIR’S STATEMENT

In his detailed statement at the meeting on 17 June, Ambassador Sorli announced the calendar of meetings until the end of July to “organize and take stock of the text-based discussions on an urgent response to the COVID-19” pandemic.

Ahead of the meeting, the chair sent an email to members on 16 June in which he said “following my conclusion of item 13 at the Council’s meeting on 8-9 June and subsequent consultations with a group of Members on 11 and 16 June, I propose the following arrangements for an intensive text-based process to discuss the waiver proposal IP/C/W/669/Rev.1 and related submissions and proposals.”

In the email, he said that “in the course of this process, we need to permit a combination of various formats of meetings and activities, while maintaining the central principles of openness, transparency and inclusiveness.”

He informed members that at the end of the intense discussions every week, there will be an open-ended informal meeting.

Ambassador Sorli said that the TRIPS Council “secured availability of conference facilities for four informal open-ended meetings of the TRIPS Council, at which I can report on any chair-led consultations to the wider membership, where delegations can report on any bilateral discussions they have had, and where Members can generally take stock of the state of play of the text-based process.”

He said that “the spacing of these meetings is intended to allow for sufficient time for consulting capital and other delegations between dates.”

Ambassador Sorli said that the open-ended informal meetings are scheduled as follows: Wednesday, 30 June 2021; Tuesday, 6 July 2021; Wednesday, 14 July 2021; and Tuesday, 20 July 2021.

He said that “one of these may have to be transformed into a formal meeting of the Council, so as to adopt a TRIPS Council report to the General Council, which is now scheduled to take place on 27-28 July 2021.”

In his remarks at the meeting, the chair said the meeting was specifically convened for “addressing the modalities of the process going forward.”

He said that he would invite “a smaller, but representative group of delegations, to start a discussion of what I consider to be a key substantial question, namely, scope.”

The chair elaborated that “scope has two different aspects: coverage of TRIPS provisions, and coverage of products,” suggesting that members should have substantive discussions on these two issues.

According to the chair, other issues such as “duration and implementation” will be discussed in due course. The open-ended meeting on 30 June will take stock and consider next steps in more detail.

Commenting on the conflicting views that have emerged as to when the EU’s proposal needs to be discussed during the small-group meetings, the chair said to the proponents of the waiver proposal that they are ready to discuss all proposals, including new proposals. He reserved 24 June to discuss the EU’s proposal.

He concluded by saying that “even if members have accepted to engage in a text-based process, this acceptance is not entirely without caveats, and reservations from some members,” suggesting that “we should not think that substantial differences have evaporated.”

Ambassador Sorli said that his role is “to facilitate the process, which will allow us to reassess the formats and modalities,” arguing that members should engage on the substance of the core issues.

PROPONENTS OF WAIVER REMAIN UPBEAT

Responding to the chair’s preliminary remarks, South Africa said that “the co-sponsors are happy to enter into text-based negotiations.”

The South African TRIPS negotiator Mr De Gama clarified that “even though we will start with the substantive provisions on scope, as you (the chair) rightly point out, the scope of the IP provisions of the TRIPS agreement, and scope of products, starting with the scope of the products would be easier and that this could then go into a discussion of the IP rights that are involved.”

Mr De Gama explained that “we would just like to put it on record that we would be happy to proceed from that basis on a line-by-line discussion.”

He said the proposed open-ended informal meeting on 30 June will allow members to “assess, firstly, whether the modus operandi, which has been set forth, has been successful, how we can tweak it, to such an extent, and certainly how we can get into specific issues around implementation, and the like.”

He went on to assure the proponents of other proposals that the co-sponsors of the TRIPS waiver “are happy to discuss any submissions, that their relevance to our discussion, and I want to reiterate that the waiver proposal has been brought on the basis of Article 9.3 (of the Marrakesh Agreement), [which is a] very distinct legal basis for this discussion, and so any proposals that deal with this particular process, would be welcome.”

Article 9.3 of the Marrakesh Agreement that established the WTO in 1995 states, “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 fourths of the Members.”

Mr De Gama highlighted the difference with the EU’s Communication, saying that “the basis upon which this communication is made, at this point, seems to be different from the legal basis on which we are having our discussions.”

More importantly, he told the chair that the co-sponsors of the TRIPS waiver “have a fire date” and “an end date, which cannot be later than the General Council dates, indicated to finalize our deliberations on the waiver proposal.”

South Africa said that although there is no consensus on the revised waiver proposal, the co-sponsors “hope to, through your guidance, and I think through various interactions, we are able to find each other.”

Mr De Gama said that “we will not only rely on the processes that you’ve outlined, but we, as co-sponsors, will proactively reach out on a bilateral basis, to discuss our ideas and to see what type of landing zone we can create through a mutually inclusive discussion.”

He emphasized that “the WTO has an obligation to explore processes that will ensure that we reach these objectives and certainly, where intellectual property rights are concerned, we believe that the mandate of the TRIPS Council, as set out in the Marrakesh Agreement, and of course, the process that we are embarking on, is the right and most appropriate way for us to address Covid-19.”

In his second intervention at the meeting, which is largely aimed as a response to the chair’s second round of remarks as well as to the interventions of the European Union, the United States, the United Kingdom, and Switzerland, Mr De Gama raised a few points.

He emphasized that members “should count the cost of these negotiations in lives, the longer it takes us to conclude these negotiations, the more people are likely to die.”

Mr De Gama pointed to the comments made by many developing and least developed countries that “they do not have access to, for example, vaccines.”

He said that “there is generally a low level of vaccination in many developing countries, with the prospect of this changing in the near future, actually, are not realizing very quickly.”

Consequently, he said, “what we’ve heard today really underscores the importance of us concluding our negotiations as soon as possible.”

Responding to the US statement, which had objected to the chair-led process in the discussions, Mr De Gama said that the WTO is a member-driven organization and that “members have spoken loud and clear, firstly that we do have a common objective and that is that we have to address Covid-19 through all the necessary means possible.”

He said that the WTO is not the only relevant organization, suggesting that the co-sponsors recognized “the fact that all efforts to address Covid-19 should be welcomed, wherever they are in, whatever form this may happen.”

In regard to statements made in support of the COVAX facility, which is being implemented with donations, Mr De Gama said the co-sponsors “many times pointed out the shortcomings of this very short-term solution to a long- term problem.”

“And so we believe this is where the waiver comes in, and makes it possible to enable countries to operate, to share information, and to cooperate,” he emphasized.

Further, “when it comes to common objectives,” he said members have to address Covid-19.

He said that the co-sponsors are aware that passing the waiver “will not immediately solve the problem, but it will help us to build up our capacity to address these particular shortcomings.”

He lamented about the time lost in discussing the waiver proposal, suggesting that “if we had enabled the waiver to be passed a year ago, six months ago, nine months ago, we would already have more producers coming online to produce vaccines, for example.”

On the issue of evidence-based approach, he said “we see that there are huge tracts of un-transparent behaviour and a lack of information, and this makes it much more difficult for us to get a true picture and a good understanding of what is happening.”

Explaining the differences between the waiver proposal and the EU’s Communication, he told the chair that “we are not opposing your proposal to have a separate session to discuss the EU proposal, but I do not think that we can discuss it, in the same meeting, side-by-side. I think there are certainly different approaches.”

Mr De Gama said “the waiver proposal incorporates many of the points that the EU is seeking to make through its compulsory license proposal.”

More significantly, he emphasized that “the waiver is a time-bound, short-term intervention.”

He said “speculating about longer and medium term consequences may not necessarily be useful in the context of the substantive discussion on scope.”

He rejected the Swiss proposal, saying that “the sequence of our discussions has no bearing on the substance because the fact that the waiver proposal is discussed on the 22nd (of June) has no impact on the discussion on the 24th, because the EU proposal has no bearing to the process that we’ve set forth under Article 9(3).”

INDIA’S INTERVENTION

Agreeing with the chair’s proposed calendar of meetings on the text-based negotiations, India said the proponents will be proactively engaged on both scope and substance during the discussions in all formats to take forward this process.

India said that “each proposal is to be discussed on its own merit.” India said that “there are different approaches to achieve our common goal and they are not in any way crisscrossing each other or coming in the way of each other.”

India said it is critical that members “come out with a solution urgently.”

India said it would be interested to see what the new proposals will bring to the table. “However, these would be dealt with in parallel and would follow their own due course,” India said.

It underscored the need for members “to come to the meetings with their comments or suggestions or changes (preferably in writing) to the revised text.”

INDONESIA’S STATEMENT

Indonesia, in a strong statement, said that they agree with South Africa’s statement that “we can approach the scope of the product first, before the TRIPS coverage.”

Indonesia cautioned that the EU proposal or other proposals that are put on the table should not defeat each other’s (proposal).

Indonesia argued that “as we have seen, the inequality of access of Health Products and Technologies globally, as well as the continued spread of this pandemic, we will need whatever tools are possible in front of us to combat this Covid-19 pandemic” through “multilateral and global solidarity – a solidarity approach.”

THE AFRICAN GROUP

On behalf of the African Group, Tanzania argued that members need an outcome on an expeditious basis as it “will contribute to expanding production …, and affordable access to vaccines and therapeutics.”

The African Group, said Tanzania, “would like also to add the constant refrain of going back to the process of philosophical discussion on the waiver,” arguing that members must avoid unnecessary debates.

China, which supports the waiver, argued that “WTO is well equipped to provide comprehensive solutions to tackle the pandemic, and IP is one of the important aspects.”

It thanked the co-sponsors for their revised proposal, which has provided a basis for the next phase of text-based discussions.

China said it would welcome the EU’s Communication, arguing that it “stands ready to get into future discussions, in all possible configurations ….”

Cabo Verde explained how it is unable to get any vaccines until now while its economy is severely affected due to the pandemic.

“So, the temporary waiver is [primary] for us to deal with the pandemic,” Cabo Verde argued.

On behalf of the least-developed countries, Bangladesh said it “is a good idea to start with the product list; we would like to see where are the problems.”

The LDC group said that the “WTO is the place where we believe that we can definitely contribute to this end.”

Egypt, which is a strong proponent of the waiver, said that “after eight months of discussions in this Council, it is time to reach a positive outcome on the proposal, to assist in better facing the unprecedented challenges of the pandemic.”

Sri Lanka, which is badly affected by the Covid-19 pandemic on a per capita case basis, issued a powerful human- centered statement, saying that “it’s not even so emotional because though I’m not physically in Sri Lanka, I feel the pulse of the people of Sri Lanka.”

It called for an expeditious solution, urging members “to come to meaningful negotiations on a text rather than bringing elements which may hinder that process.”

Bolivia said it is ready to discuss any relevant proposal, adding that members must “first know what the proposals are based on.”

Having invoked the compulsory license provision, Bolivia said that we are yet to hear any opposition to text-based discussions. It said focus should be on substance and on effective solutions.

During the meeting, there were varying views on the issue of dealing with different proposals. The co-sponsors of the TRIPS waiver led by South Africa and India repeatedly argued that the waiver proposal, which has been the global focus for the past eight months, must be discussed exclusively, while the EU’s Communication must be discussed on a parallel track.

Major developed countries such as the US, the EU, the United Kingdom, and Switzerland apparently issued somewhat sceptical statements, said people, who asked not to be quoted.

The US, which brought about a qualitative shift in support of the waiver proposal and text-based negotiation on 5 May, suggested that the TRIPS Council is not the only place where they have deployed their efforts along with the EU, the UK and a number of other countries.

Without mentioning the G7 leaders’ agreement on health, the US said that it has deployed its energies in other initiatives.

It said that the work at the TRIPS Council is just one piece of a broader global coordinated strategy on vaccine production, said people, who preferred not to be quoted.

The US wants the discussions to start with common objectives and not with the scope, arguing that it will make it clear for people as to what options should be deployed to achieve the common goal.

It expressed its skepticism about beginning with scope, as a recipe to engage in a circular process that does not go anywhere.

The US wants members to spend time on what is the end goal, what is the timeline and the urgency with which members must move.

Surprisingly, all these issues have been clarified in considerable detail by the co-sponsors of TRIPS waiver in their submissions last year, said a person, who asked not to be quoted.

Without mentioning the current proposals, the US said some of them could be very expensive and could take long times. The timeframe is important for arriving at a solution, the US said, according to people familiar with the discussions.

The US cautioned about a calendar filled with no purpose, calling on members to make sure that meetings are driven by substance.

It maintained that members need to be prudent and judicious in the schedule because if they are not able to talk to each other, they will not find solutions and will come back to meetings without being able to bridge gaps.

The US is also opposed to a chair-led text, as this approach, in its view, has shown to be a failure in every instance where it has been tried in the WTO. The US said that it has not accepted any end date for this or any conclusions.

Referring to the need to provide a report to the General Council, the US said it has not committed to any timeline that is not based on a process that builds a consensus-based outcome.

“The devil is in the detail as regard the US statement,” said a former TRIPS negotiator, suggesting that it is more aligned with the G7 statement.

The European Union said that it is ready to constructively engage in a text-based substantive process to find a way forward in the discussion on the role of intellectual property in enhancing access to affordable COVID-19 vaccines and therapeutics and to proceed with concrete and pragmatic short and medium term solutions to enhance universal access to COVID-19 vaccines and therapeutics, at affordable prices.

The EU said it is not convinced about the broad waiver proposed by South Africa and India, suggesting that it may not be the right response to the pandemic.

Switzerland, which is one of the leading opponents of the waiver proposal, called for the EU proposal to be discussed on an equal footing.

It called for a pragmatic solution, while the US said the initial discussion should focus on how a waiver – if agreed – would rapidly increase the supply of COVID-19 goods.

The UK said while it is ready to engage in the text-based negotiations, it remained skeptical about various elements of the revised waiver proposal.

In short, the battlelines are drawn for securing an early, positive decision on the waiver, when talks begin next week. It will reveal whether the developed countries are willing to save lives or protect the iron-clad international monopoly IPR system of Big Pharma. – Third World Network UNB