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How the TRIPS agreement tripped in the vaccine lane

Within TRIPS, public health and access to critical medicine are always going to be more contentious issues

May 13, 2021 / 11:46 AM IST
Representative image. Source: Reuters

Representative image. Source: Reuters

On May 5, the United States Trade Representative Katherine Tai in a statement said that the Biden-Harris administration “believes strongly in intellectual property protections, but in service of ending this pandemic, supports the waiver of those protections for COVID-19 vaccines.” This decision should hopefully ease some of the restrictions on exporting vaccines by the US and importing by struggling countries such as India.

In the process, the pandemic exposed another construct of human co-operation: Trade-Related Aspects of Intellectual Property Rights (TRIPs). TRIPS came into existence in November 1995, 11 months after creation of the World Trade Organization (WTO). In 2020, the WTO separately marked the 25th anniversary of TRIPS along with its own, highlighting the importance of the agreement.

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The TRIPS agreement was an attempt to streamline, standardise and enforce Intellectual Property Regimes (IPR) across the world. The developing countries objected to the IPRs as it was seen as a prerogative of the developed countries; they also pointed that the developed world paid scant attention to the IPRs when they were ‘developing’. This initial disagreement gave way to a grand bargain between the two sides. If the developing countries agreed to TRIPs, these countries were offered access to the agricultural and services markets of the developed world. Further, it was agreed that in developing countries the TRIPS agreement would be implemented in stages. Finally, what eventually happened was what happens in any other global institution — the developed world deployed non-tariff barriers to limit opening their agricultural/services markets.

Within TRIPS, public health and access to critical medicine were always going to be more contentious issues. This is because most of the pharma companies are based in developed countries and work under stiff patent regimes. In the 2001 Doha Ministerial, WTO members recognised that developing countries faced many public health problems ‘especially those resulting from HIV/AIDS, tuberculosis, malaria and other epidemics’. Compulsory licencing was permitted, under which in the case of a national medical emergency developing countries could license the use of a patented invention to a third party or government agency without the consent of the patent-holder.

Obviously few anticipated a medical emergency such as COVID-19. Many of these rules were written assuming that it will be mainly the developing world which will require medicines; but the current pandemic has severely impacted the developed world.

In the early days of the pandemic, a few experts had correctly anticipated that TRIPS will act as a major hindrance in providing medical relief to the people. They argued for relaxation of patents available to the global pharmaceutical companies so that vaccines are available to everyone at fair prices. On October 2, India, along with South Africa, wrote to the WTO for relaxing certain sections of the TRIPS agreement ‘in relation to prevention, containment or treatment of COVID-19’.

Despite the merits of these arguments, they fell on deaf ears. Then US President Donald Trump thwarted any form of global co-operation. To make matters worse, the member countries failed to nominate WTO’s Secretary General during the period August 2020 to February 2021.

The result was that once vaccines were available, we saw vaccine nationalism instead of vaccine co-operation. Vaccine nationalism created vaccine inequality. The world economy is increasingly reliant on global supply chains for critical goods, including vaccines. Without a global health recovery, both global supply chains and global recovery will remain elusive.

Rays of hope were seen when the US leadership changed and Ngozi Okonjo-Iweala was appointed WTO chief in March. Okonjo-Iweala worked towards arriving at a consensus, and even though the Biden-Harris regime was initially reluctant, it also agreed to waive off the TRIPS agreement.

It is a shame that these delays resulted in several deaths across the world — deaths which could have been avoided if world leaders had given up petty politics, tried to understand the gravity of the situation and showed empathy. The developed world has (hopefully) realised that global institutions are meant to create and serve global public goods and have to be protected at all costs. The game of undermining global institutions would someday cost the developed world — and that is today.

Will the TRIPS waiver lead to medical relief as suggested? This will be based on whether the true intent behind the waiver is to provide help or to generate a media hype. The world polity should come together and iron out all the barriers for sharing access to medicines and vaccines. They owe it to humanity. Once the pandemic is over they should collectively strengthen global institutions such as TRIPS and make them fair and just.
Amol Agrawal is faculty at Ahmedabad University. Views are personal.

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