2022 · COVID-19 · European Union · Intellectual Property · International Intellectual Property Law · IP Policy · Patents · TRIPS Agreement · Uncategorized · Vaccines · WTO

The TRIPS COVID ‘Waiver’ Decision: Rhetorical Action or Realistic Solution?

Now that the WTO members have finally been able to agree on a TRIPS ‘waiver’ for covid-19 at the 12th Ministerial Conference, it is time to critically evaluate this waiver decision. To start with, the only key waiver in this decision is in its paragraph 3(b) which permits an eligible member to waive Article 31(f) of the TRIPS Agreement. Importantly, this waiver decision is nowhere similar to what India and South Africa requested for in October 2020. To be honest, the outcome aligns more with the concessions that the EU and the USA were willing to make: the EU wanted to clarify the rules relating to compulsory licensing; the USA simply wanted a waiver for vaccines. That is more or less what happened in the end i.e. on the 17th of June 2022.

So, what exactly is provided for in this so called waiver decision? As I predicted some months ago when the outcome of the quadrilateral negotiation (involving the USA, the EU, India, and South Africa) was leaked, the results of that quadrilateral negotiation would constitute the basis of any final waiver decision. While there are a few changes here and there, the core of the waiver decision remains allowing eligible members to waive Article 31(f) of the TRIPS Agreement (para 3(b)). Also, the waiver decision is still restricted to vaccines (para 1).

Footnote 1 of the waiver decision offers some clarity regarding the meaning of ‘eligible members’ in this context. While the first sentence of footnote 1 states that all developing country members are eligible members (I am guessing this also includes least-developed countries by default), the second sentence of footnote 1 goes on to state that: ‘Developing country Members with existing capacity to manufacture COVID-19 vaccines are encouraged to make a binding commitment not to avail themselves of this Decision.’ So, just to be clear: on the one hand, only developing countries are eligible members; on the other hand, those developing countries with manufacturing capacity are not supposed to use this waiver decision. So, what exactly is the point of waiving the requirements of Article 31(f) of the TRIPS Agreement? Which country is supposed to actually benefit from para 3(b) of the waiver decision?

According to para 6 of the waiver decision, eligible members can apply the provisions of the waiver decision ‘until 5 years from the date of this Decision.’ The second sentence of para 6 states that the duration of the waiver decision may be extended by the WTO’s General Council. It is however still unclear why, according to para 8, the decision on the extension of the waiver decision to diagnostics and therapeutics for covid-19 has to be delayed for another six months. There are other issues with the waiver decision but, to avoid making this post too long, these issues won’t be covered here.

Unsurprisingly, NGOs and even the pharmaceutical industry are unhappy with the waiver decision but at least the DG of the WTO and the United States Trade Representative seem to be happy with the final outcome. I can only assume that the EU is probably pleased with the waiver decision as well. The statement of India’s Minister of Commerce and Industry, on the 14th of June 2022, prior to the adoption of the waiver decision is however quite telling:

…My own sense right now with the number of meetings that are being held and with the number of green room engagements, is that the effort they are putting in, is more to showcase to the world that ‘Oh! we found a wonderful solution, we agreed with 80 countries or more to give a TRIPS waiver’. Now the common man does not understand that this is nothing near a TRIPS waiver, they do not understand that this is a little elevation from compulsory licensing.

So, is the waiver decision a realistic solution? In this regard, there are interesting parallels between the process that led to the 2003 waiver decision and the process leading to the current 2022 waiver decision. The current Article 31bis of the TRIPS Agreement started its life as a waiver decision in 2003. However, Article 31bis has only been used once by Canada and Rwanda. In fact, I have not yet come across any successful use of Article 31bis during the covid-19 pandemic. Indeed, para 3(b) of the 2022 waiver decision more or less confirms that Article 31bis is an unrealistic framework.

A plausible explanation for why the 2003 waiver decision was adopted anyway by WTO members can be found in the analysis of this particular waiver decision by Morin and Gold. In a 2010 article on the 2003 waiver decision, they contend that ‘when consensus-seeking is elevated to the status of procedural norm’, as is the case with the decision making process at the WTO, ‘it is likely to bring participants into a position of “rhetorical action.” Drawing on the work of scholars such as Schimmelfennig, Morin and Gold define ‘rhetorical action’ as the ‘strategic deployment of an organized set of claims with the purpose of convincing an audience or depriving opponents of rhetorical materials’. As they point out, ‘rhetorical action’ is ‘based on using arguments to persuade others but without a willingness to give up on maximizing one’s own gains. According to Morin and Gold, the 2003 waiver decision is the result of the procedural norm of consensus-seeking at the WTO which fosters ‘rhetorical action’ on the part of negotiators and which ultimately produces unhelpful outcomes or agreements.

So, has history repeated itself again with the 2022 waiver decision? Is this newly minted waiver decision a realistic solution or merely the outcome of rhetorical action that is meant to give the appearance that the WTO can respond (and has responded) to a public health crisis like the covid-19 pandemic? Or is it perhaps unrealistic to expect a realistic solution from the WTO and/or the TRIPS Council? Also, in a forum where consensus-seeking is more or less the norm, what exactly should one consider as a realistic outcome?

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