[CTC] WTO Fails to Deliver COVID Drugs, Tests

[Arthur Stamoulis]

Washington Trade Daily
Volume 33, Number 43 Friday, March 1, 2024
 
WTO Fails to Deliver COVID Drugs, Tests
 
Abu Dhabi – The World Trade Organization’s 13th ministerial conference failed to show a
“human face”, after it failed to deliver on COVID-19 diagnostics and therapeutics as agreed at the
previous ministerial in Geneva.
 
“The WTO failed to deliver a comprehensive multilateral solution on the pandemic and even
when it delivered on COVID-19 vaccines, this was too little too late,” said 65 co-sponsors in a statement.
 
The co-sponsors led by India and South Africa proposed a waiver from implementing certain
provisions of the WTO’s TRIPS agreement for scaling up the production of COVID-19 vaccines,
diagnostics and therapeutics to address the pandemic, in October 2020.
 
“Rather than heed the call of the co-sponsors, non-proponents advocated for voluntary
arrangements and donations as the only solution to equitable distribution,” they argued.
 
The co-sponsors lamented that “in reality, however, an inconsequentially small number of
voluntary licenses were availed with strict conditionalities that did not assist to respond to the global
crisis. And there were no voluntary licenses or any licensing arrangements when it came to the
most-used vaccines in developed countries.”
 
Tests and Medicines Needed
 
They cautioned that “the COVID-19 virus is still with us, and the world needs therapeutics and
diagnostics to ensure better management of its impact.”
 
“If WTO Members were serious about providing an effective solution in the context of global
solidarity, they needed to extend the TRIPS decision to diagnostics and therapeutics within six months
as promised,” according to the statement.
 
“However, over a year after the deadline, the non-proponents have stalled any possible outcome,
ensuring that the world remains vulnerable not only to this pandemic but future pandemics.”
 
Issuing a strong statement, the 65 co-sponsors led by South Africa and India cautioned that
“failure to deliver on multilateral outcome” to effectively address the growing concerns on “equitable
and affordable access to health products, including diagnostics and therapeutics”, casts “a dim light on
the ability of the WTO to act in solidarity during an international emergency as recognized by the
WHO.”
 
Paragraph eight of the WTO’s TRIPS Agreement reached at the MC 12 in Geneva in 2022,
mandated members to conclude an agreement “no later than six months from the date of this Decision,
Members will decide on its extension to cover the production and supply of COVID-19 diagnostics and
therapeutics.” That deadline ended on December 17, 2022.
 
Despite sustained efforts by the co-sponsors, major industrialized countries with huge
pharmaceutical bases like the United States, the European Union, Switzerland, and the United Kingdom
among others opposed extending the coverage to COVID-19 diagnostics and therapeutics on one ground
or the other during the past two years.
 
In an attempt to keep the issue alive for securing the waiver on COVID-19 diagnostics and
therapeutics on a future day, the co-sponsors said “The IP barriers that challenge equitable and
affordable access have prolonged this pandemic and remain unaddressed, threatening us in the next
pandemic.”
 
Sponsors Remain Committed
 
The 65 countries said they “remain committed to addressing these concerns of developing
countries including the LDCs in the context of health emergencies such as pandemics by advancing
policy space for Members, along with full utilization of existing flexibilities in the TRIPS Agreement
including Article 73.”
 
Stressing that the “most solemn obligation of every government is to protect the life and health of
its people,” the co-sponsors underscored the “need for scaled-up access to diagnostics, treatments,
vaccines and personal protective equipment (PPE) (health products) was manifest.”
 
Explaining the background to their request for a Waiver, the co-sponsors said they approached
Members of the World Trade “to temporarily waive certain provisions of the Agreement on
Trade-Related Aspects of Intellectual Property Rights (TRIPS) to support the global COVID-19
pandemic response.
 
Public Interest
 
The template for the statement shared with some countries suggests that the waiver request “was
in recognition that the intellectual property system is meant to provide a balance between providing
incentives for bringing about innovation and rewarding creativity and promoting the broader public
interest.”
 
The co-sponsors said “in the area of public health, intellectual property objectives must also be
balanced against realising the right to health, of which access to medicines and other health products is a
central part.”
 
Further, the waiver request sought to address the legal problems posed by monopolies through
“disputes on infringement of intellectual property rights even at the height of the pandemic and that
health products would be in global short supply drawing from the experience of previous pandemics and
health emergencies.”
 
While “pooling financial and scientific resources is the only option for accelerating progress
towards new vaccines, treatments and diagnostics,” the co-sponsors said “Developing countries
including the LDCs were gravely concerned. Much of the latest technology used to develop and
manufacture necessary health products was owned and controlled by companies, governments and other
institutions based in developed countries.”
 
“Without access to this technology, the prospects for manufacturing and distributing health
products would be restricted,” the co-sponsors maintained.
 
They argued that “access to health products would be at the discretion of pharmaceutical
companies from a handful of high-income countries.”
 
Referring to the COVID-19 pandemic which “offered WTO Members an opportunity to act in
solidarity by adopting a multilateral solution to help bolster the capability of developing countries to
respond to a health crisis. Co-sponsors advocated for a multilateral solution so as to restore faith in
multilateralism and avoid Members adopting self-help measures, thereby fragmenting the intellectual
property system. An undesirable outcome that a time-bound and limited waiver could have helped
prevent(ing)” more people from the COVID-19 virus.
 
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