Pressures were high and expectations low going into last week’s World Trade Organization (WTO) ministerial meeting, known as MC12, in Geneva. The normally bi-annual gathering of global trade ministers had been postponed twice due to COVID-19; the second time in November, when a rapidly spreading omicron variant made gathering dangerous.
This year, omicron may have been the least of many participants’ concerns, replaced by soaring inflation, war-induced food shortages, pandemic-related financial crises, and escalating superpower rivalry. In these circumstances, any WTO outcome, no matter how underwhelming, would look like—or could be spun as—a major success for multilateral governance.
On Thursday night (Friday morning in Geneva), last-ditch “green room” negotiations of varying degrees of inclusiveness produced an abridged, temporary agreement on curbing fisheries subsidies, non-binding declarations on food security and the WTO response to the pandemic, and an agreement to extend the WTO moratorium on taxing cross-border e-commerce transactions until next year’s MC13.
But perhaps most disappointing for many international civil society groups and developing countries, WTO members arrived at a very bad decision on the TRIPS waiver that, in the end, merely clarifies when and for how long vaccines produced under compulsory licences can be exported and imported without violating WTO-protected intellectual property rights. This decision is so narrow and qualified that it might well prove unusable.
“It is hard to imagine anything with fewer benefits than this, as a response to a global health emergency,” said James Love, director of Knowledge Ecology International, at the close of MC12. “The fact that the exception is limited to vaccines, has a five-year duration and does not address WTO rules on trade secrets makes it particularly unlikely to provide expanded access to COVID-19 countermeasures.”
Hyo Yoon Kang, assistant professor of law at the University of Kent, was more despairing in her June 17 Twitter thread: “The performance of multilateralism [at] #MC12 in Geneva was for the survival of [international] and domestic elites and failed the world's poorest. The TRIPS outcome sets an even more restrictive legal precedent of how to respond to future pandemics. It is useless.”
The TRIPS waiver, from elegance to irrelevance
The original waiver proposal from India and South Africa, way back in October 2020, was both comprehensive in scope and elegant in execution. It acknowledged that all manner of WTO-protected intellectual property rights including trade secrets, copyright, patents, and cumbersome rules around importing pharmaceutical products could get in the way of a public health response to the pandemic. Not surprisingly, the proposal attracted broad governmental and civil society support (see the CCPA’s TRIPS waiver page for more on this advocacy).
As Ronald Labonte and Mira Johri explained in a November 2020 article: “Essentially, the waiver, which needs approval by three-quarters of WTO members, would empower WTO member states to neither grant nor enforce patents or other TRIPS rules related to COVID-19. This would allow all WTO member states to engage in research, manufacturing, scaling up and supplying COVID-19 tools without fear of a trade dispute.”
Rich countries whose governments shared allegiances with their domestic brand-name pharmaceutical sectors pushed back hard.
Late into 2021, with the waiver discussions still stalled at the WTO TRIPS Council and cumulative COVID-related deaths surpassing five million, WTO Director-General Ngozi Okonjo-Iweala facilitated a private dialogue among the United States, European Union, India and South Africa (the QUAD) to come up with a compromise.
Several months later, the director-general presented a meagre eight-paragraph text, resulting from the QUAD discussion, as the depressing foundation for full WTO agreement at the June 2022 ministerial, even with none of the four countries endorsing it. (Read more about that QUAD text here.) A crucial conversation about the intellectual property barriers to an equitable pandemic response and recovery had been hammered down to a question of the interpretation of a previous unworkable flexibility found in Article 31bis of the TRIPS agreement.
I couldn’t possibly explain the MC12 decision on TRIPS and vaccines better than Priti Patnaik (in her June 18 Geneva Health Files update) and James Love (in his June 16 KEI blog). So I encourage you to read both summaries for the details. In a nutshell, the agreement “is a limited and disappointing outcome overall that is most accurately described as a narrow and temporary exception to an export restriction, not a waiver,” Love wrote.
From the beginning, Canada’s position on the TRIPS waiver was very difficult to pin down. Our WTO representatives responded to the initial waiver proposal from India and South Africa by raising eight questions about why it was needed—questions that had been answered already, as Doctors Without Borders pointed out at the time.
When India and South Africa promptly responded to all eight questions, Canada prevaricated, disappearing from the minutes of subsequent TRIPS Council meetings at the WTO. Canadian trade and health officials also gave the silent treatment to the Bolivian government and Canadian pharmaceutical firm Biolyse after they jointly applied to use Canada’s access-to-medicines regime to make generic versions of a patented COVID-19 vaccine for export to Bolivia.
“Despite reiterating platitudes about supporting a consensus solution at the WTO, Canada does not appear to actually have deeply held convictions, let alone the courage to assert them,” noted Adam Houston, a Canadian medical policy officer at Doctors Without Borders, in April. Houston was referring to the government’s unwillingness to take a position on the significantly pared-down QUAD compromise waiver, which provided a foundation for MC12 discussions.
This Canadian ambiguity, while annoying, had its funny moments. “As a supporter of an outcome for the TRIPS waiver issues, Canada is working with all our international counterparts to find a solution rapidly,” tweeted Minister Ng on June 13. I mean, how rapidly is nearly two years after the waiver was first proposed? And was Canada willing to support any outcome?
It’s not as strange as it sounds. As fringe players in the final days of the waiver discussions, Canadian officials were probably elated to see them neatly wrapped up, at least for now. As Minister Ng suggests in her June 17 press release, “consensus on the TRIPS waiver” is what’s important for the government, not necessarily the substance of the consensus. That and not irritating Big Pharma, as Nikolas Barry-Shaw documented in his December 2021 article in The Breach the effect of industry lobbying on public policy.
What to expect next
At the close of MC12, DG Okonjo-Iweala said the “Geneva Package” of agreements and decisions will “make a difference to the lives of people around the world,” and demonstrates “that the WTO is, in fact, capable of responding to the emergencies of our time.” Several countries, including Canada, the United States, and India, claimed their actions were uniquely critical to achieving consensus, as required in WTO governance. It is unfortunate that these three countries also share blame, along with the European Union, United Kingdom and Switzerland, for ditching wider global public health interests for a fleeting trade diplomacy “win.”
The MC12 decision on TRIPS does commit WTO members to deciding within six months whether to apply the modest export-related waiver to therapeutics and diagnostics as well as vaccines. But international waiver advocates have good reason to worry that this deadline will not be met. The United Kingdom and Switzerland are dead set against the idea of expanding the waiver to include promising new COVID-19 therapeutics and the Biden administration is almost certain to take cues from its powerful, and now irritated, pharmaceutical lobby.
Global health advocates are now putting pressure on governments to find the courage to work around the TRIPS agreement, individually and in partnerships with other governments, so they are better prepared to face the current and future pandemics.
“Governments should consider using all available legal and policy options, including suspending intellectual property on COVID-19 medical tools, issuing compulsory licenses on key medical technologies to overcome patent barriers, and adopting new laws and policies to ensure the disclosure of essential technical information needed to support generic production and supply,” said Doctors Without Border on June 17.
In that spirit, a group of 300 international civil society groups, including the CCPA, have endorsed a call to action urging governments to:
- Pledge not to use the WTO’s and other trade and investment agreements’ dispute mechanisms or other means in an attempt to stop or dissuade countries from producing, distributing or using medical technologies or from sharing information on how to do so regardless of WTO and free trade agreement IP rules,
- Take every step necessary to save lives and end the pandemic, including by fully using the WTO’s existing, albeit limited, flexibilities, and
- Circumvent the WTO’s pharmaceutical monopoly rules when possible and outright defy those rules when needed.
For example, Latin America has been all but locked out of voluntary licensing arrangements between Pfizer and the Medicines Patent Pool (MPP) for production of the company’s COVID-19 treatment nirmatrelvir/ritonavir (known as Paxlovid), which Pfizer has applied to patent all Latin American countries. In response, NGOs have put requests to the Dominican Republic and Chile to issue compulsory licences to import generic versions of the treatment, including from companies that have entered into an agreement with the MPP.
As Love pointed out in his summary of the TRIPS waiver outcome, this refocused attention on national governments may be one among a few other silver linings of the WTO failure. Public pressure must now break governments’ unspoken allegiance to Big Pharma interests. The impetus for domestic legal reforms to facilitate compulsory licensing is heightened by the Geneva outcome and the likelihood that wealthy countries will continue to hoard next-generation vaccines and treatments for this and future pandemics.
Another silver lining, noted by Patnaik, is the attention that the long TRIPS fight brought to the issue of trade-protected intellectual property rights and, I would add, the corporate biases in the global trade order, writ large. Canada’s dogged support for the “rules-based international trading order” sounds noble at a glance, but it can conceal a Canada First foreign and trade policy that has the capacity to harm the interests of developing and low-income countries.