India, South Africa proposal for TRIPS waiver to be taken up again at WTO

India and South Africa’s proposal for a temporary waiver in Trade Related Intellectual Property Rights (TRIPS) provisions to ensure free flow of medicines, vaccines and medical equipment between countries during the ongoing Covid-19 pandemic will come up for discussion once again at the World Trade Organisation (WTO) this week.

The two countries — supported by Bolivia, Eswatini, Kenya, Mozambique, Mongolia, Pakistan, Venezuela and Zimbabwe — have circulated a fresh submission responding to various queries on the necessity for the waiver put forward by countries opposing the move including Australia, Canada, Mexico and Chile, to be discussed at the meet. The informal open-ended TRIPS Council meeting is scheduled on January 19.

“The General Council of the WTO could not arrive at a decision on a waiver before the year-end break as many countries opposed it while several others wanted it to be implemented. It will hopefully be able to take the matter forward now given the fact that the proposed waiver has been supported by several civil society and intergovernmental organisations,” an official tracking the development told BusinessLine.

As per the TRIPS waiver proposal, the WTO should allow all member countries to choose to neither grant nor enforce patents and other intellectual property (IP) related to Covid-19 drugs, vaccines, and medical products for the duration of the pandemic.

“The waiver proposal is to ensure that complications arising from IP rights protection do not delay response or lead to suboptimal response from the countries around the world affecting lives of all people. .... The pandemic has a huge social cost and if unaddressed through swift and appropriate action by each country, will create negative externality for every country,” as per the response paper submitted by India and South Africa.

The countries pointed out that in December 2020, spread of new variants of the coronavirus that are even more transmissible, resulted in many more infections and deaths globally. “The sooner all countries around the world receive the needed medical products including diagnostics, vaccines and therapeutics, the better the world, including countries that are opposed to the waiver proposal, will be for it,” the submission said.

special compulsory licences

Several reasons were put forward by the two in response to questions by dissenting countries on why Article 31 of the TRIPS agreement, that provides the legal basis for WTO members to grant special compulsory licences for the production and export of affordable generic medicines to other members that cannot domestically produce it, can’t be used for meeting Covid-19 related needs. The countries explained that the process could be time consuming and complicated as it offers a country-by-country, case-by-case and product-by-product solution. The legal validity of the authorised compulsory licence may also be challenged, hindering expeditious supply, the submission added.

India and South Africa also pointed out that developed countries have been using pressure tactics to discourage the use of compulsory licences. “In 2020, in the midst of a raging pandemic, the Office of the United States Trade Representative (USTR) issued its Special 301 Report citing “actions by trading partners to unfairly issue, threaten to issue, or encourage others to issue compulsory licenses,” and specifically highlighting Chile, Colombia, Egypt, El Salvador, India, Indonesia, Malaysia, the Russian Federation, Turkey, and Ukraine,” the response noted.