World Trade Organization Is Moving Too Slow for Comfort

As the battle against COVID-19 drags into the second year, an eerie spectre looms over the world. On the one hand, the world has overcome incredible challenges to launch more than half a dozen vaccines to eradicate the pandemic, but on the other, it is now faced with an even greater challenge of equitably distributing available vaccines across the world. Estimates indicate that high- and upper-middle-income countries have been able to secure or procure 6 billion of the first 8.6 billion vaccine doses. The lower-middle-income and low-income countries have only been able to secure a little more than half a billion vaccines each. Multilateral forums like the COVAX facility, which have been set up mainly to ensure more vaccines to the poorer nations, have managed just a little more than a billion doses.

Such gross inequity in vaccine availability will not only prolong the pandemic in poorer regions of the world, but also threaten the vaccination gains in the richer nations, as the virus in vast swathes of the poor nations continuously mutates and props up new variants which can reinfect the already vaccine-protected populations in the richer countries. After all, no one is safe in a pandemic until everyone is.

However, even though the difficulty of ensuring an equitable distribution of COVID-19 vaccines had been recognised quite early in the pandemic, and efforts initiated to tackle them, most of them have come to naught. In fact, one of the biggest global collaborations to accelerate development, production and distribution of COVID-19 tests, treatments and vaccines called the Access to COVID-19 Tools (ACT) Accelerator was launched as early as April last year, which initiated COVAX, a key facility that was to ensure fair and equitable access to vaccines across the globe.

And by November last year, as many as 186 countries had joined the COVAX initiative, of which 94 were self-financing ­nations while 92 required funding support, which aimed to ­procure as many as 2 billion vaccines in 2021, of which 1 billion were to go to low-income countries. However, this grand initiative gradually fell through as many of the rich nations pushed through their own bilateral deals with vaccine manufacturers and pre-ordered billions of doses of vaccines for their exclusive use. This not only squeezed even the limited vaccine procurement opportunities of the COVAX facility, but also raised global prices of vaccines, which rendered COVAX contributions rather insufficient.

Similarly, another initiative launched by the World Health Organization in May last year, called the COVID-19 Technology Access Pool (C-TAP), to ensure timely, equitable and affordable access to COVID-19 health products through voluntary, non-exclusive transparent licences, fared no better. This facility to both support the development of products to fight COVID-19 and also scale up manufacturing, while simultaneously reducing barriers to the global access of these products, has also been ­unable to make much headway as almost none of the major pharmaceutical companies have made any substantial commitments to the technology pool so far.

It is in this context of the failure of the earlier efforts to combat vaccine nationalism and ensure more equitable distribution of vaccines that India and South Africa made the request, almost eight months back in October 2020, for the waiver of intellectual property rights of COVID-19-related vaccination and treatments. Their joint submission to the Trade Related Intellectual Property Rights (TRIPs) Council at the World Trade Organization (WTO) requested an immediate waiver from implementation, appli­cation and enforcement of Sections 1 (copyrights and related rights), 4 (industrial designs), 5 (patents) and 7 (protection of undisclosed information) of part II of the TRIPs agreement to allow countries not to grant or enforce patents and other intellectual property rights on drugs, vaccines, diagnostics and ­other technologies related to COVID-19 until global herd immunity is achieved.

Though the move gained support of more than 100 nations in later weeks, it was vigorously opposed by a few countries, including Australia, Brazil, Canada, European Union, Japan, Norway, Switzerland, United Kingdom and United States who raised ­extraneous and intransigent objections as a diversionary tactic to stall the progress of the waiver proposal. They argued that a waiver from TRIPs’ obligation is not necessary as the WTO provisions allow flexibilities like compulsory licensing or placing limitations on or making exceptions to exclusive rights to protect public health and so they are more than adequate to tackle current issues. But the proponents of the waiver insisted that a product-by-product approach to address intellectual property barriers was not practical, especially since targeting specific products will be futile when mutating virus ensures constantly evolving needs. Moreover, pressure from trading partners and the lack of institutional capacity also limit the nations’ options to exercise available flexibilities during a pandemic.

However, the waiver proposal received a major boost in early May this year when the United States Trade Representative (USTR) declared support to waive intellectual property rights for ensuring greater availability of COVID-19 vaccines and actively participating in the text-based discussions at the WTO. However, despite these gains, the WTO authorities point out that a pragmatic framework which can automatically provide developing nations access to health technologies, while also providing incentives for research and innovation by pharmaceutical companies, will only emerge at the Twelfth WTO Ministerial Conference scheduled for December. This is too far a timeline and such extraordinary delays to waive intellectual property rights to ensure adequate availability of vaccines can cost innumerable lives and livelihoods and only further delay any immediate recovery of the global economy.