The WTO announced on June 17 that it had reached an agreement on the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) waiver. The deal has been criticized by people’s movements around the world as the WTO decidedly rejected the demand by health activists for a full TRIPS waiver.
The ministerial decision on the TRIPS agreement, spurred by the COVID-19 pandemic, was announced in the early morning in Geneva on June 17, almost two days after the expected end of the 12th Ministerial Conference. Although the decision was hailed by the WTO Secretariat and officials from the Global North as an unprecedented result, in practice it falls short of meeting the bare minimum of the world’s needs.
Trade delegates at the 12th Ministerial Conference of the World Trade Organization (WTO) reached a consensus on documents related to the organization’s role in COVID-19 pandemic response. Their decision comes almost two years after the TRIPS waiver proposal was raised at the WTO by South Africa and India.
In addition to documents related to the COVID-19 response, WTO Director-General Ngozi Okonjo-Iweala announced concrete outcomes resulting from discussions on food security, fishing subsidies, e-commerce, and WTO reform.
Dr. Lauren Paremoer from the People’s Health Movement in South Africa said of the document: “The Ministerial Conference failed to deliver a waiver. The agreement puts profits ahead of lives and shows the current intellectual property regime fails in protecting health, and promoting tech transfer. This non-waiver sets a bad precedent for future pandemics and will continue to put lives at risk, especially given the TRIPS plus provisions it contains and the refusal to include a waiver for diagnostics and therapeutics.”
According to Health Action International, the decision makes the use of existing TRIPS flexibilities such as compulsory licensing more complicated, while relaxing limitations on the export of vaccines only slightly. In other words, the decision does not waive intellectual property privileges, unlike a TRIPS waiver. Health activists have expressed concern that the decision does nothing to address inequality of access to COVID-19 tests and medicines, focusing exclusively on vaccines.
The decision states that members will discuss expanding its application to COVID-19 diagnostics and therapeutics in no more than 6 months, but there is no guarantee that the expansion will actually happen. On the contrary, considering that rich countries, including the US, have been very vocal about excluding tests and medicines from the decision in the weeks leading up to the Ministerial Conference, it seems more likely they will continue to block the possibility.
This is particularly unnerving, as a draft ministerial declaration on the WTO response to the COVID-19 pandemic from June 10 explicitly recognizes that access to tests and medicines in the Global South is a major problem. By not broadening the application of the decision to diagnostics and therapeutics while acknowledging barriers to access, the WTO proves that, since the very beginning of the pandemic, the aim of WTO’s rich members was less about upholding the right to health, and more about protecting the interests of the pharmaceutical industry.
All developing countries members of the WTO are meant to have the ability to use the decision. Yet, in a footnote, the decision calls for developing countries that have manufacturing capacities for COVID-19 vaccines to “make a binding commitment not to avail themselves of this decision.” In other words, those countries who could most contribute to the pandemic response by fully mobilizing their production capacities are encouraged not to do so. This raises the question, to whom exactly this decision is supposed to benefit?
The decision’s eligibility criteria are formulated in a way to eliminate some countries with developed production capacities. By ruling that developing countries were out of the agreement if they had previously said they would not avail of a WTO decision of this kind, the decision excludes China. China stated that it would not agree to a WTO decision earlier in May, as the US was insisting on a provision to exclude countries who had exported 10% or more of the global stock of vaccines in 2021 from the application of the decision, which targets China specifically.
Health and trade justice movements call for alternative routes
Trade unions and civil society have already called out the WTO and rich countries’ delegation for misrepresenting the results of the Ministerial Conference, stressing that the package of documents published by the WTO should not be seen as a success. Instead of celebrating the result of what was a chaotic series of negotiations tinged by lack of transparency and unequal treatment of members from the Global South, civil society is calling on governments to take practical steps to ensure better access in spite of the bad outcome.
These steps include pledging not to use dispute mechanisms or other means to dissuade others from producing, distributing or using medical technologies, as well as using all existing WTO flexibilities and, where no other option is available, openly defying WTO’s pharmaceutical monopoly rules.
Civil society groups present at the Ministerial Conference played a key role in pointing out the main shortcomings of the meeting throughout the week. This refers not only to negotiations on the COVID-19 response documents, but also to discussions taking place under the food security, agriculture, and fishing agenda. Advocacy efforts went ahead in spite of attempts by the WTO to limit civil society participation and reduce the space for dissenting opinions anywhere near the venue hosting the Ministerial Conference.
While the WTO Secretariat said that the “Geneva Package” confirms the historical importance of the multilateral trading system and underlines the important role of the WTO in addressing the world’s most pressing issues, especially at a time when global solutions are critical, this is a gross overestimation. If anything, the way in which the Ministerial Conference was conducted—driven by pressure from rich countries and the Secretariat on members from the Global South to compromise, in an attempt to save what’s left of the organization’s face—once again showed that the WTO is not a legitimate forum for making decisions on health.
Read more articles from the latest edition of the People’s Health Dispatch and subscribe to the newsletter here.