TRIPS waiver proposal being undermined by EU at WTO

Source: third world network

Third World Network Information Service

TWN Info Service on Trade, IP and Health
10 August 2021
Third World Network

TRIPS waiver proposal being undermined by EU at WTO
An earlier version was published by SUNS #9404 dated 10 August 2021

Geneva, 9 Aug (D. Ravi Kanth) – The chair of the WTO’s TRIPS Council, Ambassador Dagfinn Sorli from Norway, will convene a meeting on 14 September to discuss the revised temporary TRIPS waiver proposal that seeks to ramp-up the production of diagnostics, therapeutics, and vaccines across countries in fighting the worsening COVID-19 pandemic.

The pandemic has already claimed more than 4.2 million lives so far with over 202 million registered cases of COVID-19 globally. The real figures of loss of human lives seems to be more than 12 million, according to estimates made by researchers in several American universities.

However, a handful of countries led by the European Union seem determined to undermine any decision on the TRIPS waiver that has been under discussion in the TRIPS Council for the past ten months.

The delay in finalizing a decision on the waiver is not only contributing to the increasing loss of human lives, with the developing and least-developed countries bearing the brunt of the health and economic crises arising from the pandemic.

More disturbingly, it is ensuring “vaccine apartheid”, with the Global South being largely excluded from the supply of vaccines.

It is also enabling Big Pharma to reap tens of billions of dollars in profits by focusing the vaccine supplies mainly in the developed countries that are paying high prices for these vaccines, according to several studies.

Against this backdrop, the TRIPS Council chair Ambassador Sorli sent an email to members on 29 July proposing focussed discussions on how “the Council should structure its work in this regard going forward.”

Prior to the meeting scheduled for 14 September, the chair plans to reach out to individual delegations in early September. Ambassador Sorli urged members to pursue their bilateral contacts on this matter.

The temporary waiver seeks to suspend certain provisions in the TRIPS Agreement relating to copyrights, industrial designs, patents, and trade secrets for at least three years to enable the developing and least-developed countries to set up vaccine production facilities without any further delay.


It is an open secret that the international regime of intellectual property rights appears to be the major barrier in scaling up COVID-19 manufacturing capacity for producing diagnostics, therapeutics and vaccines, according to several studies.

“Among the pandemic’s many lessons, however, is that greed (of Pfizer, Moderna, and AstraZeneca) can easily work against the common good,” says Jag Bhalla, in an op-ed piece published in Undark magazine on 8 May, under the title “Biotechnology greed is prolonging the pandemic. It’s inexcusable.”


Bhalla says that “we rightly celebrate the near-miraculous development of effective vaccines, which have been widely deployed in rich nations.”

“But the global picture reveals not even a semblance of justice: As of May, low-income nations received just 0.3 per cent of the global vaccine supply,” he argued. “At this rate, it would take 57 years for them to achieve full vaccination.”

He held Big Pharma, led by Pfizer and others who have made phenomenal profits of close to $100 billion due to their m-RNA vaccines, responsible for failing to share their technology and know-how even though their research was publicly funded by governments (therefore taxpayers).

Aided and abetted by Big Pharma and its lobbyists, conservative lawmakers in the US continue to oppose the TRIPS waiver proposal that would allow local drug makers to manufacture the needed vaccines without any legal jeopardy.

Big Pharma, supported by the European Union (EU) and its most powerful member Germany, have constantly blocked any progress in the TRIPS waiver discussions in the TRIPS Council during the past ten months on “ideological grounds”.

Big Pharma and the EU constantly echo the idea that IPRs and high drug prices are necessary motivators for bio-medical innovation while the evidence on the ground suggests that the reverse is the case, according to several analysts.

As countries are fighting the rapidly spreading Delta variant of the SARS-CoV-2 virus, the prospects for an early decision on the temporary TRIPS waiver for ramping-up the production of diagnostics, therapeutics, and vaccines appear to be undermined by the biggest trading bloc – the European Union, said people familiar with the development.


The 63 co-sponsors of the revised proposal on the TRIPS waiver issued a strong message at an informal General Council (GC) meeting held on 27 July demanding an urgent agreement on the waiver before the WTO’s 12th ministerial conference (MC12), to held in Geneva end-November. At that meeting, many developing countries, including South Africa, India, Mauritius on behalf of the African Group, and Chad on behalf of the LDC group, called on members to engage and conclude an agreement by MC12.

South Africa apparently said that the TRIPS waiver is a necessary, targeted, time-limited and proportionate legal measure directed at addressing intellectual property (IP) barriers in a direct, transparent and efficient fashion, which is consistent with the WTO legal framework.

It appears to have said that an approval of the waiver enables companies the freedom to operate and produce covered COVID-19 health products and to use health technologies without the fear of infringing on another party’s IP rights and the attendant threat of litigation.

Moreover, the TRIPS waiver is an important catalyst towards encouraging solutions aimed at global equitable access to COVID-19 health products and technologies including vaccines, therapeutics and diagnostics, which is in the wider interest of the global public.

Further, along with the importance of producing the vaccines across countries, saving lives necessitates access to diagnostics, treatments, oxygen and personal protective equipment, to prevent, treat and combat COVID-19, South Africa argued.


In a similar vein, India said the co-sponsors of the TRIPS waiver engaged in small group meetings and addressed the repeated concerns raised about how the waiver would function and whether it would undermine the future development of vaccines.

However, India said that the co-sponsors remain dismayed when a few members are refusing to engage in the text- based negotiations, according to people familiar with India’s comments at the informal GC meeting.

These few members, according to India, ensured that we were unable to meet the deadline set by the TRIPS Council chair for reaching the necessary landing zone by end-July.

Without naming the handful of countries, India criticized them for selectively interpreting the rules and procedures to create hurdles in the discussions. India argued that the proposed waiver will enable the temporary suspension of the relevant TRIPS rules, providing the manufacturers around the world the freedom to operate and scale up production of vaccines.

India also argued that the waiver is a necessary ingredient of a multi-pronged approach to combat the pandemic, stressing that a differential approach to combat the pandemic will not only fail but also be counter-productive to the recovery. India further emphasized that members as an organisation must rise to the occasion and deliver, and save the people we are here to serve.

It said that it is high time that the WTO prioritizes saving human lives and livelihoods over all other priorities, arguing that a decision on the waiver is absolutely crucial to the relevance of the organization in these trying times.


Despite the co-sponsors of the TRIPS waiver yet again responding to questions and requests for clarification from members, a handful of industrialized countries, led by the EU, are continuing to oppose the waiver.

This was seen again at the informal GC meeting on 27 July where Brussels argued that “given the nature of the identified bottlenecks and the need for the sharing of know-how, the European Union does not believe that the proposed suspension of the TRIPS Agreement by the waiver proposed by South Africa, India and a number of other WTO Members, is an appropriate and effective response.”

The EU said that the waiver could undermine the ongoing collaborations, which are based on the well-established platform of intellectual property protection and will have a chilling effect on future such collaborations. However, in the same breath, the EU continued to tout its proposal relating to the use of compulsory licensing ostensibly for ramping-up the production of vaccines, implicitly acknowledging that the “ongoing collaborations” i.e. voluntary licensing are not delivering the much needed vaccines to developing and least-developed countries.




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