WTO Agrees on Limited IP Waiver for COVID-19 Vaccines and Package to Reduce Harmful Fishing Subsidies
MC12 Chairman Timur Suleimenov gavels the end of the closing session with WTO Director General Ngozi Okonjo-Iweala early Friday morning.

Limited IP waiver text says WTO members “will decide” on inclusion of COVID-19 tests and treatments within six months. 

The World Trade Organization’s first ministerial conference in four and a half years reached agreement early Friday morning on what officials described as “an unprecedented outcome” of six agreements, including a deal to curb some fishing subsidies that deplete ocean stocks, a limited waiver of WTO’s intellectual property protections on COVID-19 vaccines and a humanitarian food security measure – all of which will have wide-ranging impacts on global public health.

In a tactical victory for medicines access advocates, WTO members agreed to insert a clause in the final text on the IP waiver for COVID-19 vaccines stating that “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.”

While there is now a global surplus of vaccines making the waiver in existing IP for the jabs almost meaningless, any future decision to extend the waiver of certain IP protections to COVID-19 tests and treatments — which are much easier to produce and also still in very short supply in many countries — could be more impactful.   

Two overnight sessions before white smoke emerged 

WTO’s director-general, Ngozi Okonjo-Iweala, presides over the 12th Ministerial Conference (MC12)

WTO’s marathon talks involving more than 100 trade ministers lasted a day and a half longer than planned and included two sleepless nights. Kazakh politician Timur Suleimenov, who chaired the conference, said it “feels like a very long and gruelling marathon” but he was happy to show that the WTO can deliver and address some of the global challenges.

“We actually needed to showcase to the world that multilateralism is alive, and the rules-based system is alive,” said Suleimenov, a deputy chief of staff to Kazakhstan’s president, at a closing press conference. “We did need an extra day — actually two — to prove to the critics that they were wrong, and I think we did a little more than that. And I think we have reached a remarkable outcome.”

The six decisions and ministerial declarations were endorsed and accepted by all of WTO’s 164 member nations, he said, paving the way for WTO “to be ready for future crises.” The long-fought deal to curb fishing subsidies for fishing of over-exploited species and on the high seas, he said, is “a unique and unprecedented accomplishment” that will help deal with the global food crisis. “We have a successful, and some would call it maybe, historical conclusion,” he added.

WTO’s director-general, Nigerian-American economist Ngozi Okonjo-Iweala, said she was exhausted, since “we haven’t slept for two nights, we were here throughout,” but the conference had produced “an unprecedented outcome” that would have “very tangible results” for citizens worldwide.

Agreement on agricultural measures elude members

Protests Wednesday, 15 June, outside of the World Trade Organization against existing WTO rules that developing countries say unerasonably limit public food stockholding

She said the only major area in which WTO member nations were not able to agree was a draft decision on agricultural reform  — where developed country opposition to  developing country demands for an easing of WTO rules around public stockpiling of vital food supplies eventually foiled a comprehensive deal.

However, the final draft of a ministerial declaration on food insecurity reaffirmed the importance of improving ”  the functioning and longterm resilience of global markets for food and agriculture, including cereals, fertilizers, and other agriculture production inputs,” considering specific needs of developing and  net food-importing developing countries.”  The agreement also acknowledged that “adequate food stocks can contribute to the realization of Members’ domestic food security objectives,” although it encouraged members with available surplus stocks to release them
on international markets.

Even so, the six other deals may go a long way to restoring WTO’s credibility as a vital global institution. Its last ministerial conference in December 2017 at Buenos Aires failed to clinch a single deal. And, in 2019, WTO’s appellate body for settling trade disputes virtually ground to a halt due to U.S. opposition to refilling judges on its bench. A former World Bank managing director and Nigerian foreign minister, Okonjo-Iweala took the helm of the WTO last year and was resolved to restore the global trade body’s relevance.

“I want to say how delighted I am and excited that we’ve been able to prove that the WTO can deliver, and deliver multilateral outcomes. When I started this job, I mean, the expectations of the WTO were not very high, to be kind about it,” she said. “But today we’ve shown that the WTO can produce outcomes, and multilateral outcomes like that. So we were expecting one or two deliverables … and we got six.” Since WTO operates by consensus, any single nation can block a deal.

“It was not an easy process, an easy road,” Okonjo-Iweala added, laughing. There were a lot of bumps, just like I predicted. It was like a roller coaster. But in the end, we got there.”

Harmful fisheries subsidies not the full deal but… 

Commercial fishing boat

She called the deals “very, very substantive outcomes,” including the TRIPS vaccines waiver and a companion declaration on WTO’s pandemic response; a declaration to exempt World Food Programme purchases from export restrictions; and the decision to curb environmentally harmful fishing subsidies that cap 21 years of negotiations on subsidies that experts say have enabled big rigs to plunder the high seas far from home countries, driving a depletion of 30% of the world’s fish stocks. 

 “Although it is not the full package,” she said of the fishing subsidies deal, rather than keep disagreeing “we were able to say, ‘Okay, where do we all agree on?’ … That is stage one,” Okonjo-Iweala said.

Notably, the final agreement still prohibits subsidies to fishing of stocks on the high seas that are not managed by regional bodies, the International Institute for Sustainable Development said in a statement. It prohibits subsidies for vessels and operators engaged in illegal, unreported, or unregulated (IUU) fishing, and it establishes new rules for subsidies for the fishing of stocks that are already over-exploited – requiring countries to rebuild the stocks “to a biologically sustainable level” if it continues to subsidize such fishing. And the treaty contains certain flexibilities for developing country WTO members, known as special and differential treatment.

WTO members also agreed to continue negotiations on issues that fell by the wayside in the draft text, with an eye to an agreement by MC13 to “achieve achieve a comprehensive agreement on fisheries subsidies, including through further disciplines on certain forms of fisheries subsidies that contribute to overcapacity and overfishing.” Developing countries led by India had protested a broader curtailment of subsidies, including for fuel, at this stage, saying it would harm artisinal fishermen – who also may fish up to 100 nautical miles offshore – although critics said the India also was more concerned with protecting its industrial fishing fleets.

Agreement matters

Buying fish from a vendor at Gosa Market, Abuja, Nigeria

However imperfect, the agreement is a turning point after 20 years of negotiations over the subsidies at a time when 90% of the world’s fisheries are fully exploited or dangrously depleted, according to the FAO, threatening global food security – and a protein source upon which one-third of the world’s population relies.

“This agreement matters because it will require governments to think critically about their subsidy policies and how they interact with efforts to manage natural resources sustainably,” said Alice Tipping, who leads IISD’s program on sustainable trade and fisheries subsidies. 

The U.S.-based Pew Charitable Trusts said the fishing subsidies deal will help curtail overfishing and improve ocean health by creating a global framework to limit subsidies for illegal, unreported, and unregulated fishing. “This is a turning point in addressing one of the key drivers of global overfishing,” said Isabel Jarrett, who manages Pew’s campaign against fishing subsidies.

“Now, WTO members need to bring the treaty into force as swiftly as possible and implement it in good faith,” she said. “Recognizing that there are still outstanding issues for WTO members to discuss, we were pleased to see them commit to recommending further rules on harmful fisheries subsidies at the next ministerial conference.”

India’s trade delegation also had been blocking agreements on the fishing subsidies, but India’s Commerce Minister Sri Piyush Goyal seemed to hint it was a negotiating tactic when he told reporters on the fifth day of negotiations that his delegation still believed the conference “will turn out to be one of the most successful ministerials that the WTO has seen in a long time.”

Partial IP waiver criticized on all fronts 

Protest in Indonesia against the delay in WTO’s approval of a TRIPS waiver for COVID-19 vaccines.

The long delayed deal on a partial IP waiver for COVID-19 vaccines aims to ease rules under which developing countries can produce and export biosimilar (generic) versions of vaccines, without permission from patent holders. It passed after last-minute input from the United States and China, Okonjo-Iweala said. 

Presumably, the United States had to agree to the clause providing for negotiations over tests and treatments in six months time; until now, it had only agreed for the waiver on vaccines — much to the chagrin of vaccine advocates.  

As one of the world’s biggest vaccine exporters, China also had to agree to waiver language that implicitly excludes it from the IP exemption.  A footnote in the agreement says developing countries that can make COVID-19 vaccines “are encouraged to make a binding commitment not to avail themselves of this decision. Such binding commitments include statements made by eligible Members to the General Council, such as those made at the General Council meeting on 10 May 2022, and will be recorded by the Council for TRIPS and will be compiled and published publicly on the WTO website.”

China, which exported more than 10% of the world’s COVID-19 vaccines in 2021, had explicitly said in the General Council proceedings that it would not avail itself of the waiver, but it objected to language explicitly excluding large developing country exporters.   

The temporary waiver, overrides some existing WTO “TRIPS” protections on intellectual property, enabling developing countries to produce and export COVID-19 vaccines without a license from the patent-holder, under somewhat relaxed terms.

Final IP waiver deal denounced by co-sponsor India and pharma industry 

Press briefing Wednesday in Geneva by UN AIDS Executive Director Winnie Byanyima (second from right) and civil society opponents to the current text of the WTO IP waiver.

But unlike the deal on fisheries subsidies, there was no celebration over the final IP waiver text – which is limited in scope as well as carrying a number of new conditions that many original advocates described as potentially dangerous precedents. The text came in for immediate criticism by the the pharma industry as well as by India, one of the original co-sponsors of the waiver initiative. 

Pharma industry leaders share a “deep disappointment with the decision taken to adopt a TRIPS waiver, despite intellectual property (IP) not being a barrier to vaccine scale-up and wide acknowledgement of vaccines surplus,” the Geneva-based International Federation of Pharmaceutical Manufacturers & Associations (IFPMA) said in a statement.

Médecins Sans Frontières (MSF) described it as a “devastating global failure”, while Ellen t’Hoen, of Medicines, Law and Policy said it was “no longer a TRIPS waiver in the sense it was proposed by South Africa and India in October 2020.”  Although she acknowledged that the new measure “may make the issuing of a compulsory licence easy and swift and will help the few countries that currently do not have workable compulsory licensing mechanisms.”

Jamie Love, of Knowledge Ecology International said that “while the text is not expected to impact COVID-19 vaccine equity much or at all, there are some silver linings.” He named those as the: “shorter and more usable” requirements for notifying WTO of vaccines produced under the waiver for export, as well as the waiver of any limitation on imports by countries with no manufacturing capacity of their own.

“If the decision is extended to therapeutics in six months, it may be much more value, given the supply constraints on therapeutics and the much better regulatory pathway,” he added.

India meanwhile said that the long-delayed agreement on the vaccine IP waiver had lost its relevance in light of the vaccine oversupply. “What we are getting is completely half-baked and it will not allow us to make any vaccines,” India’s Goyal said in a statement posted earlier this week on his ministry’s website. “It’s just too late. There is no demand for vaccines anymore.”

He said, however, that his nation hopes the measure will lead to a broader deal a half-year from now: “Our hope and desire was that this will be the beginning and in 6 months they will decide over the therapeutics and the diagnostics.”

Elaine Ruth Fletcher contributed to the reporting and writing of this story. 

Image Credits: @ITforChange, World Trade Organization, Michael Casmir, Pierce Mill Media, Nur Sofi Iklima , MSF Access .

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