For vaccine equity, the TRIPS waiver is crucial
More than a year ago, India and South Africa, at the World Trade Organization (WTO), piloted the proposal to waive key provisions of the Trade-Related Aspects of Intellectual Property Rights (TRIPS) agreement temporarily to augment the production and supply of Covid-19 vaccines, drugs, therapeutics, and related technologies (Covid-19 medical products).
Although this proposal is today backed by more than 100 countries, the TRIPS waiver is still not a reality. With the WTO ministerial meeting at Geneva just a few weeks away, time is running out, even as obscene vaccine disparity stares humanity in the face.
According to Unicef, G20 countries have received 15 times more Covid-19 vaccine doses per capita than countries in sub-Saharan Africa. While close to 70% of the total population has been fully vaccinated in certain countries of Western Europe, this number is barely 6% in Africa. Poorer countries need Covid-19 medical products, particularly vaccines, now.
The biggest opponent of the TRIPS waiver is the European Union (EU). It believes that countries can make use of existing flexibilities in the TRIPS agreement such as issuing compulsory licences (CLs) — the right of the government to issue a licence to make use of a patent during the patent term without the patent holder’s consent.
CL is an important provision of flexibility within the TRIPS framework. However, in the context of the pandemic, the use of CLs has several limitations.
One, the political economy of CLs demonstrates that developed countries pressure developing countries against issuing CLs. For example, India was subjected to relentless attacks by the United States (US) when it issued a compulsory licence in 2012 to produce a generic version of Bayer’s cancer drug.
Two, least developed countries with insufficient manufacturing capability cannot make effective use of CLs because of the cumbersome process that countries need to follow to import and export medicines produced under a CL as per the TRIPS agreement.
Three, as Médecins Sans Frontières (MSF) has argued, CL can only be employed to overcome the patent barrier. It is not useful in overcoming other IP barriers such as trade secrets that also inhibit the rapid scaling up of the production of Covid-19 medical products.
Critics of the TRIPS waiver also argue that even if IP protection on Covid-19 medical products is diluted, it will not help in ratcheting up the production of these products. For instance, while lifting patents will remove the legal restrictions on manufacturing, it will not solve the problem of the lack of access to technological know-how. Waiving IP protection does not impose a legal requirement on pharmaceutical companies to transfer or share technology.
However, as IP lawyers such as Siva Thambisetty and others argue, a TRIPS waiver is still useful because it can be part of a carrot-and-stick approach, along with relevant domestic legal measures, to incentivise and mandate the sharing of technological know-how. For instance, countries can offer financial incentives to pharma corporations to buy out technical know-how or enact measures that mandate them to do so.
Under international human rights law, WTO member countries must protect the right of health of everyone. For instance, Article 12(2)(c) of the International Covenant on Economic, Social and Cultural Rights (ICESCR) obligates countries to take steps towards prevention, treatment, and control of epidemic, endemic, and other diseases for the full realisation of everyone’s right to health. In the specific context of Covid-19 vaccines, the United Nations (UN) Committee on Economic, Social and Cultural Rights (CESCR) has emphasised that countries “have a duty to prevent intellectual property and patent legal regimes from undermining the enjoyment of economic, social and cultural rights”. Furthermore, the CESCR states that “the intellectual property regime should be interpreted and implemented in a manner supportive of the duty of States to protect public health”. This role has been expanded to cover equitable global Covid-19 vaccine distribution.
Therefore, access to Covid-19 vaccines — a global public good — and other medical products should not be a question of philanthropy but of countries fulfilling their human rights obligations under international law.
In recent times, neo-liberal capitalism has come in for scathing criticism for widening income inequality. TRIPS agreement, enacted due to the efforts of developed countries such as the United States, backed by American pharmaceutical transnational corporations, is considered a symbol of this inequitable neo-liberal capitalism.
The EU’s effort to zealously protect the IP standards of pharma corporations, even at the time of a pandemic, signals the triumph of corporate profits over the health of the poor. This stance will further dent the credibility of WTO. Not just for humanity but also for its own sake, WTO needs to deliver a comprehensive TRIPS waiver that covers all Covid-19 medical products (not just vaccines).
Prabhash Ranjan is with OP Jindal Global University. Sakshi Ranjan is a lawyer based in DelhiThe views expressed are personal