[CTC] WTO: US holds decision on diagnostics & therapeutics hostage to ITC probe

[Arthur Stamoulis]

Third World Network Information Service

TWN Info Service on Trade, Intellectual Property and Health
22 March 2023
Third World Network
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WTO: US holds decision on diagnostics & therapeutics hostage to ITC probe
(An earlier version of this article was published in SUNS #9746 dated 21 March 2023)

Geneva, 20 Mar (D. Ravi Kanth) — The United States is apparently holding hostage the decision to extend the World Trade Organization’s 12th ministerial conference (MC12) Ministerial Decision on the TRIPS Agreement to COVID-19 diagnostics and therapeutics until its International Trade Commission (ITC) has completed its investigation, said people familiar with the discussions on 16 March.

Paragraph 8 of the MC12 Ministerial Decision on the TRIPS Agreement adopted on 17 June 2022 unambiguously stated that “no later than six months from the date of this Decision [17 June 2022], Members will decide on its extension to cover the production and supply of COVID-19 diagnostics and therapeutics.”

On 16 December 2022, the WTO General Council (GC) recommended that the missed deadline of 17 December 2022 should be further extended.

Yet, three months after that GC decision, there appears to be no light at the end of the tunnel, said participants, after attending the WTO’s TRIPS Council meeting on 16 March.

At the TRIPS Council meeting on 16 March, the US apparently stated that it can only decide on the crucial issue of the much-delayed decision to extend the MC12 Ministerial Decision on the TRIPS Agreement to COVID-19 diagnostics and therapeutics on 18 October, due to its ongoing ITC investigation, said people familiar with the US decision.

Frustrated with the US decision, many developing countries, including the least-developed countries, led by South Africa and India on behalf of the 65 co-sponsors of the original TRIPS waiver proposal suggested that appropriate lessons must be drawn from the COVID-19 pandemic that continues to wreak havoc in various countries. Accordingly the developing and least-developed countries sought an early decision on the extension of the MC12 Decision to therapeutics and diagnostics.

On behalf of the African Group, Tanzania apparently expressed serious concern over the failure to meet the deadline of December 2022 set out by Ministers at MC12 in June.

According to Tanzania, the extension of the deadline clearly demonstrates the absence of the necessary political will to duly implement consensual decisions taken by Governments.

The inordinate delay and failure to address critical issues like this in a timely manner does not instil the optimism and confidence needed to address the contemporary challenges the WTO faces, Tanzania said.

It warned that the longer it takes to deliberate on the extension of the MC12 TRIPS Decision to cover the production and supply of COVID-19 diagnostics and therapeutics, the less critical contribution the WTO will make to the lifesaving efforts for COVID-19 patients.

Tanzania said the African Group showed maximum flexibility when the six-month extension was agreed – as an indication of good faith to accommodate the request of some members to undertake domestic consultations.

The African Group regretted that apparently, some members are using this as an excuse to avoid engaging in discussion and to establish new narratives, adding that it is disturbing to witness the inordinate delay.

South Africa, which spoke for the co-sponsors of the original TRIPS waiver proposal, and other growing supporters, drew attention to their joint proposal (IP/C/W/694 dated 17 June 2022), arguing that a more comprehensive waiver would support the efforts to ensure timely, equitable, and universal access to safe, affordable, and effective therapeutics and diagnostics as well as ramping up of production and expanding supply options.

Given the arduous negotiations on the TRIPS waiver that were held before the MC12 TRIPS Decision, it appears somewhat clear that major pharmaceutical-producing countries are again back to their game of “stonewalling,” said a TRIPS negotiator, after the meeting.

South Africa had argued, “at a minimum, the extension of the policy tools provided in document WT/MIN (22)/30 to therapeutics and diagnostics will result in a holistic approach to enable developing countries to address those IP barriers that prevent the expansion and diversification of production and increase accessibility to crucial live-saving COVID-19 tools.”

In its intervention, India spoke about the missing enthusiasm and spirit of solidarity that members exhibited to achieve the MC12 TRIPS outcome which is difficult to sustain in the long run.

India drew attention to the current poly-crisis, which is disproportionately impacting developing countries, said people familiar with the Indian statement. It underlined the persistent inequality in access to, and affordability of, therapeutics and diagnostics and exacerbating vulnerabilities that continue to challenge global recovery.

India mentioned the internal consultation with the United States on this issue, suggesting that it should not limit in any way other members from engaging at the TRIPS Council with a view to achieving a common understanding.

According to India, this approach would make effective use of the period up to October 2023 and enable members to build consensus to deliver on this issue. The protractive discussions on this matter in unprecedented times like these underscore the need for mechanisms that help deal with future emergencies in a timely and effective manner, it added.

Bangladesh on behalf of the LDC group, Kenya on behalf of the ACP (African, Caribbean, and Pacific) group, Indonesia, Egypt and Nepal among others underscored the need to accelerate the discussion to reach a consensus on the extension of the TRIPS Decision.

China expressed concern over the severe lack of COVID-19 therapeutics following the intensive recent outbreak of the virus in its territory which is linked to the soaring prices of some widely recognized oral antiviral treatments.

According to China, these treatments were too expensive to afford and the amount available was accordingly far from enough.

China called on members to take further steps to strengthen solidarity through collective efforts so as to bridge the gap as early as possible, and to address the legitimate concerns of developing members on COVID-19 diagnostics and therapeutics.

THE “NAYSAYERS”

At the 16 March TRIPS Council meeting, Switzerland stated its allegedly obdurate position that there is no need for extending the MC12 TRIPS Decision, suggesting that there is no evidence for such a decision to be taken at this juncture, said people familiar with the discussion.

It mentioned the joint Swiss-Mexican submission of November 2022 (IP/C/W/693), where “ample evidence” was presented to indicate that there is no lack of supply, and that there is sufficient manufacturing capacity of COVID-19 therapeutics and diagnostics.

Japan said that IP rights and the TRIPS Agreement play a crucial role in the research and development of vaccines, diagnostics, and therapeutics, and favoured advancing this discussion in a more constructive manner, based on the facts and evidence already provided in order to prepare for future pandemics.

The United Kingdom emphasized that whatever decision is agreed will have to be underpinned by evidence-based policymaking.

Ambassador Lansana Gberie of Sierra Leone, in his last meeting as TRIPS Council chair, called on members to plan well in advance if they want to achieve results and find convergence in the coming months.

According to his experience, he said that TRIPS Council discussions are most constructive when they are well prepared and take place on the basis of submissions and proposals that members have been able to study in advance.

The next TRIPS Council meeting is scheduled for 14-15 June, and the agenda for that meeting will close on 1 June. +




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