Time to End ‘Delaying Tactics’ on TRIPS Waiver, Say India And South Africa Ahead Of Critical WTO Meeting
High-level panel on TRIPS waiver

CAPE TOWN – The “circular discussion” at the World Trade Organization (WTO) on the TRIPS waiver needs to move to “text-based” negotiations, Ambassador Xolelwa Mlumbi-Peter, South Africa’s Permanent Representative to the WTO said on Tuesday.

Her Indian counterpart, Brajendra Navnit, added that opponents of the waiver had been using “delaying tactics” since the beginning of the year, “changing goalposts” to raise new problems once their earlier concerns had been addressed.

Mlumbi-Peter and Navnit were addressing a high-level panel on Tuesday organised by a range of civil society organisations, on the eve of yet another meeting of the TRIPS Council on the waiver issue, set for Wednesday and Thursday. 

A waiver in the enforcement of patents, copyright, industrial designs, and trade secrets, under WTO’s Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), was proposed in October 2020 by India and South Africa, for all COVID-related health products for the duration of the pandemic. 

This proposal has been supported by over 60 member states, but opposed by mostly high-income nations. During the ensuing six months of negotiations, a further two million people have died from the SARS-CoV2 virus, participants at Tuesday’s panel pointed out. 

A revised version of the TRIPS waiver proposal is to be presented at Wednesday’s TRIPS General Council “in a bid to reconcile positions”, according to the WTO.

‘Hopeful Signs” on US Position 

Ambassador Xolelwa Mlumbi-Peter, South Africa’s Permanent Representative to the WTO

Until recently, Mlumbi-Peters had chaired the WTO TRIPS Council, on behalf of South Africa, and had thus been unable to speak publicly in support of the waiver proposal. 

Another panelist, United States Congresswoman Jan Schakowsky, who has been championing the waiver in her country, said that it was still unclear if the US administration would support the waiver – but there were some hopeful signs of “dramatic change”.

“The United States position is evolving. There are divisions even within the administration – and [within] the Members of Congress, a majority of the Democrats have weighed in, in favour of a TRIPS waiver,” said Schakowsky.

“When Big Pharma talks about its priorities and that intellectual property rights rule everything, they are forgetting that the American people, the taxpayers, have spent billions and billions of dollars in research and development and distribution, have a huge stake in this,” she added.

No ‘Good Examples’ of Voluntary Licensing 

Schakowsky supported text-based negotiations on the waiver “to make the changes that are necessary that are going to allow all countries to have access”.

“We really don’t have the time to argue with the pharmaceutical industry,” said added.

Kathleen Van Brempt, Belgian Member of the European Parliament and the trade coordinator for the Parliament’s Progressive Alliance of Socialists and Democrats Group, proposed “a coalition of the willing” involving European and US politicians in particular.

Van Brempt said that opponents of the waiver claimed that it was an “ideological” proposal that would not facilitate the technology transfer needed to speed up vaccine production, and that this could be achieved with voluntary licensing of COVID-19 treatments and medicines.

“The facts and figures prove them wrong,” said Van Brempt. “I don’t know any good examples of voluntary licensing, or even of compulsory licensing, that would ramp up production. That is not the case today, and that’s why we have to move on.” 

Kathleen Van Brempt, Belgian Member of the European Parliament

Van Brempt added: “I’m very happy to see my colleague of the US Congress [Schakowsky]. I think we should work much more closely together  because I hear that the Biden Administration might move.”

She also suggested engaging with the pharmaceutical industry as a first step to inform them about “how unacceptable it is that they decide on the price, and they decide who can produce”, when these decisions “should be steered by governments”. 

She also suggested opening up the discussion on the TRIPS waiver with the aim of “ramping up [vaccine] production”. 

More Pragmatic Than Ideological

Ruth Dreifuss, former President of Switzerland, said that “unilateral, bilateral tools, like voluntary licenses, compulsory licenses, parallel imports have not adapted to the current situation”. 

“We urgently need a more global approach as proposed by India and South Africa,” added Dreifuss, who chairs WHO’s Commission on Intellectual Property Rights, Innovation and Public Health (CIPIH) and was co-chair of the UN Secretary General’s High-Level Panel on Access to Medicines.

Neither voluntary licenses (issued by pharma companies) nor compulsory licenses (which may be issued by countries in health emergencies) are tools “that would allow us to go as swiftly as we should”, as they have always involved bilateral arrangements or decisions by individual states, which do not address the broader global situation.

“With more than $100 billion of public money invested in R&D and supply of vaccines and therapeutics, the risk taken by the pharmaceutical industry has been largely overtaken by the taxpayers,” Dreifuss added. “It is, therefore, an obligation for the states to guarantee fair access, and therefore the means to control the pandemic worldwide.” 

Dreifuss added that Switzerland “doesn’t share this idea, but I think it is a victim of a vision that is more ideological – not really pragmatic and adapted to the challenge we are facing now.” 

“Making the rights of intellectual property something very sacred is not a political position I can share,” she added.

 Van Brempt, meanwhile, said she had been encouraged that the ambassadors of India and South Africa are “not locked into their own truth” but open to negotiations.

“I might be wrong but I think I can establish a majority of the European Parliamentarians, but it will involve compromises, and maybe it will not say that we fully support the waiver, as requested by India and South Africa. Maybe it will need another wording, but what I want is a shift in how the Commission looks at it.” 


Image Credits: Tadeau Andre/MSF .

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