Covid-19 pandemic, TRIPS and the WTO

Access to covid-19 vaccines in developing countries has brought to the fore the issue of intellectual property rights in promoting public health. The global surge of the Omicron variant, while still in its infancy, further highlighted the urgency of access to vaccines, medicines and other medical products in developing countries to fight the dreadful pandemic. 

In the absence of mass vaccination, Covid-19 is not only spreading but  mutating with new variants in low income countries where vaccination rate remains very low. By the end of November, around 54.2 per cent of the global population had received at least one Covid -19 vaccine dose. For low income countries, however, the rate was just 5.8 per cent. About 40 countries have less than 10 per cent of their population fully vaccinated, the vast majority of which are in Africa. While South Africa has achieved 27 per cent vaccination rate, that of Burundi is zero per cent.

Based on current trends, many countries will not have a majority of their population immunised against Covid-19 until well into 2022. Some of the poorest countries may not reach that point until 2023. This vaccination gap is one of the main reasons, the disease still killing a large number of people every day, especially in low income countries. It is also putting a strain on health care system in these countries with very limited resources and causing serious disruptions in economic activities.

Now the emergence of  the Omicron variant has exposed the catastrophic consequences of this vaccine divide. Two weeks ago the World Health Organisation (WHO) warned that the Omicron variant of Covid-19 has now been found in 38 countries around the world including the US and many European countries. In South Africa, where the new variant has become dominant, the number of cases has risen nearly 40 folds just in one month, a rate unseen in any country during the entire pandemic.

Medical experts have been pretty quick to identify the new Omicron variant which appears to be more transmissible and also immune to current vaccines. A study  published by epidemiologists in South Africa found that the Omicron variant may be 2.4 times more effective at reinfecting people who had been previously infected with Covid-19. The authors warned that the variant "demonstrates substantial  population-level evidence of immunity from prior infection". Therefore, to deal with the newly emerging situation a new vaccine could potentially emerge, further putting stress on the global distribution of new vaccine between rich and poor countries.

The emergence of the Omicron variant and its rapid spread throughout the world calls for immediate actions to control all transmission of Covid-19 by making vaccination available to all both in poor and rich countries simply because nobody is safe if all are not safe on this planet.

Scientists and medical experts in the sphere of public health have  always emphasised that vaccines are a powerful weapon for fight against Covid-19 but their real effectiveness lies in their use within a global framework, not on a national level alone.

The Omicron variant makes it very clear now that there is no viable option to stop the spread of the virus other than a strategy of  global vaccination. This strategy requires global vaccine production and distribution supported by corresponding public health measures.

The main stumbling block for  mass access to vaccines, treatment, diagnostics  and medical products necessary for the treatment and prevention of the Covid -19 pandemic is the WTO's Agreement on Trade Related Intellectual Property Rights (TRIPS).

The intellectual property debate was the most contentious of the Uruguay Round trade negotiation which led to the establishment of the WTO. Intellectual property rights were introduced for the first time, mostly at the urging of the US and the EU. Commercialisation and privatisation of "property" has been a controversial issue, particularly when the property is not even tangible.

The competing principles are the right of access for all people to all knowledge versus the right of the creator of that  knowledge to treat that knowledge creation as private property to generate private benefits.

It is be noted that knowledge creation has been always an incremental process, therefore, to claim that the creation of a particular knowledge is a stand alone effort has no logical or empirical basis.  Despite such a serious flaw in the concept of the privatisation and commercialisation  of knowledge,  it is also to be noted that industrial intellectual property (patent, trademark and design) is being protected internationally since the 1883 Paris Convention (revised in 1967).

The WTO has always been driven by corporate interests. The WTO under the pressure from developed countries, especially the US has brought countries, which in the past had refused to acknowledge international intellectual property protection, to agree to either accept the provisions of TRIPS or opt out the WTO.

The feeling among most developing countries was that they were railroaded into supporting TRIPS to their detriment and under pressure from the US and the EU. TRIPS has literally given carte blanche to multinationals to intellectual property monopolies intended to reduce supply and increase prices.

Under the current circumstances as multinationals which own intellectual property rights over COVID-19 vaccines are able to raise prices which means less access to life saving drugs. These multinationals received billions of dollars in public funding to undertake the research and development of the covid vaccines thus further accruing financial benefits to themselves.

In October 2020, 65 countries with support from well over 100 countries of the WTO's 164 members sponsored a proposal calling for TRIPS waiver that would enable companies around the world to freely produce Covid-19 vaccines and technologies without fear of litigation over possible infringements of intellectual property rights.

But trade negotiators from the EU, Switzerland, the UK and Norway representing the big pharmaceutical corporations have refused to remove barrier in the WTO's TRIPS in order to help resolve the pandemic. The US announced its support in May this year. At the same time the US and the EU have also imposed export restrictions on critical supplies used to make vaccines, like chemicals and glassware.

Instead, developed countries have invented a diversionary tactic developed by Ambassador David Walker of New Zealand. Walker is a former Chair of the General Council and the Dispute Settlement body. He has been appointed by General Council Chair without any consultations to be the facilitator responsible for leading WTO members in finding a multilateral and horizontal response to the Covid-19 pandemic.  Over 80 civil society organisations have expressed serious concerns about the so called "walker process" on the WTO's response to the Covid-19 pandemic and dubbed it a "cynical scheme" to distract from the failure of the WTO to mount the required response to the ongoing pandemic.

They further expressed their doubts at the process and participation at the WTO 12th Ministerial Conference (MC12), November 30 - December 3, 2021 (which has now been postponed due to the outbreak of Omicron) and labeled the "Walker Process" a distraction from the urgent need to agree to a waiver of intellectual property rights for Covid-19 health tools to scale up of production and equitable access.

Since more than a year ago the TRIPS waiver was proposed, discussions at the WTO remain deadlocked. Now the issue will delay further as the WTO ministerial council meeting (MC12) scheduled for early this month has been postponed due to the emergence of Omicron where discussion was expected to take place.

The WTO has been in crisis for sometime. Its dispute settlement body has been rendered completely dysfunctional by the US refusal to approve the appointment of  new appellate body judges. Multinational corporations taking advantage of the crisis situation are now proposing to launch new talks under the guise of reform to further deeply entrench their corporate interests. The pandemic presented an opportunity to deal with the crisis with new ways to support the development of vaccine. Instead, it got stuck into doing things in the ways it used to do with enormous cost in lives.  Now WTO's inability to  waive intellectual property barriers  in line with the TRIPS waiver proposal is further contributing to deaths caused by the virus and also causing economic devastation in less developed countries. 

The WTO as the guardian of free and rule based world trade is now  failing to do that because it allowed itself to be captured by  developed countries like the US and the EU headed by Germany. In fact, the WTO rules as interpreted and applied by the rich developed countries  have contributed to the growing trends in income inequality both within and between countries, food insecurity and environmental degradation and now prolonging the health crisis caused by the pandemic.

Deborah James in an article in Counterpunch wrote, "Most countries that have experienced strong economic growth in 25 years since its (WTO) inception have done so through integrating trade with China, not by integrating trade with the EU, US or adhering to the WTO rulebook".

The WTO which still remains the core of the global multilateral trading system, has become quite ineffective since the collapse the Doha Trade Negotiation Round. In fact, reforming multilateralism in the sphere of trade or more precisely the WTO's rule based trading system is long standing. The Covid-19 pandemic has now rendered that reform an even more urgent task.

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