H.E. Ambassador Xolelwa Mlumbi-Peter (South Africa)

Holy See

15 PROPOSAL FOR A WAIVER FROM CERTAIN PROVISIONS OF THE TRIPS AGREEMENT FOR THE PREVENTION, CONTAINMENT AND TREATMENT OF COVID-19

1127.   Since this is the first time my delegation is taking the floor during the current session of the TRIPS Council, allow me to begin by congratulating you on your assumption of the Chairmanship and by assuring you of the full engagement of the Holy See. 1128.   Pope Francis has recently reminded us that "a worldwide tragedy like the COVID-19 pandemic momentarily revived the sense that we are a global community, all in the same boat, where one person's problems are the problems of all. Once more we realized that no one is saved alone; we can only be saved together". As has emerged over the last months, and has been consistently recalled by this delegation, "access to affordable medicines no longer represents a challenge just for the least developed and other developing countries; it has also become an increasingly urgent issue for developed countries". In the context of the current global emergency, it is important for the international community as a whole, and for WTO Members in particular, to work together to ensure that intellectual property rights, such as patents, industrial designs, copyrights and the protection of undisclosed information, do not create "barriers to the timely access to affordable medical products including vaccines and medicines or to scaling-up of research, development, manufacturing and supply of medical products essential to combat COVID-19". 1129.   A well-designed intellectual property system must balance the private rights of inventors with the public needs of society. International intellectual property regulations reflect the premise, as stated in the Objectives of the TRIPS Agreement, that "…the protection and enforcement of intellectual property rights should contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare, and to a balance of rights and obligations". These rights need to be adequately recognized, insofar as they compensate investments in time and capital and encourage promising research. Furthermore, such rights promote the common good by accelerating the search for solutions that benefit all needy persons in the modern world. For example, in the pursuit of new medical treatments, special protections are needed to ensure that producers are able to recover their massive expenditures on research. These protections include the assurance of just wages for scientists and researchers, as well as measures to guarantee compliance with regulations regarding product safety. In this regard, the protection of intellectual property rights enables the search for solutions to global problems. 1130.   Nonetheless, it is important to note that intellectual property rights are not an end in themselves but rather a means to an end. In order to maintain their validity, they must be subordinated, therefore, to the requirements of the common good. This requires the implementation of control mechanisms to monitor and, when necessary, to correct the logic of the market. As St. John Paul II affirmed, the "law of profit alone cannot be applied to that which is essential for the fight against hunger, disease, and poverty". These words continue to ring true. 1131.   Policies and laws should maintain a perspective focused on the respect and the promotion of human dignity, in a spirit of solidarity within and among nations. This means that, while recognizing the importance of protecting intellectual property rights, we should focus on the purpose of such rights and strive to avoid the potential negative consequences of the current system, which can arise when the aforementioned rights are divorced from their inherent foundation in the pursuit of the common good and the dignity of the human person. When, for example, high-income countries excessively protect knowledge based on a rigid assertion of intellectual property rights, this leads to an imbalance that must be addressed. Let us not forget that health care should not be subordinate to private interests; thus, access to medicines should be guaranteed in accord with the principle of non-discrimination and in a spirit of equity, transparency, participation and accountability. 1132.   As Pope Francis has stated, "what is needed is sincere and open dialogue, with responsible cooperation on the part of all: political authorities, the scientific community, the business world and civil society". In order to promote constructive dialogue that might results in positive action, the principles of solidarity, subsidiarity, and concern for the common good must be applied. Solidarity would encourage us to be attentive to the needs and concerns of others as much as our own and subsidiarity would have us supply the technical expertise and manufacturing capacity to those communities that otherwise would not have access to them. 1133.   In the midst of this global health crisis, we are all called to bring generously the best of our abilities to tackle the challenges of the current pandemic in all of its aspects and in every part of the world and to look to the future with creativity and hope. In this way, we will succeed in giving witness to the concrete solidarity that is indispensable to address the global challenges of our times. Almost 20 years ago, WTO Members agreed to remove an important obstacle to affordable drug imports: they waived certain restrictions in the TRIPS Agreement regarding the import and export of generic medicines under compulsory license, so as to ensure ready and affordable access to these medications. 1134.   In a similar fashion, given these exceptional circumstances, the TRIPS Council could recommend to the General Council, as early as possible, to grant a waiver from the implementation, application and enforcement of Sections 1, 4, 5, and 7 of Part II of the TRIPS Agreement in relation to prevention, containment or treatment of COVID-19. 1135.   Policies and laws should maintain a perspective focused on the respect and promotion of human dignity, in a spirit of solidarity within and among nations. This implies, inter alia, that, while recognizing the value of protecting intellectual property rights, we should focus on the purpose of such rights and on the limitations and potential negative consequences of the current system. "It would be sad if, for the vaccine for COVID-19, priority were to be given to the richest. It would be sad if this vaccine were to become the property of this nation or another, rather than universal and for all".

The Council so agreed.

84. The Chair said that this item had been put on the agenda at the request of India and South Africa; and a communication had been circulated. She invited India and South Africa to introduce their proposal.
85. The representatives of India and South Africa took the floor.
86. The Chair invited Members to take the floor.
87. The representatives of Kenya; Nigeria; Bangladesh; Sri Lanka; Pakistan; the Bolivarian Republic of Venezuela; Nepal; Philippines; Nicaragua; Chile; Turkey; Egypt; Indonesia; Argentina; Chad, on behalf of the LDC Group; China; Thailand; Tunisia; Tanzania, on behalf of the African Group; Ecuador; Senegal; Costa Rica; Mauritius; Colombia; El Salvador; Mali; Jamaica; the European Union; the United States of America; Switzerland; Japan; Norway; the United Kingdom; Brazil; Mozambique; Canada; Australia; Honduras; the Holy See; the World Health Organization (WHO) and the United Nations Programme on HIV/AIDS (UNAIDS) took the floor.
88. The Chair invited the Secretariat to share procedural requirements.
89. The representative of the Secretariat took the floor.
90. The representative of the United States of America took the floor.
91. The Chair noted that the proposal had been submitted to the Council on 2 October 2020. Thus, the 90-day time-period would expire on 31 December 2020. For practical purposes, this would mean that the last opportunity for the Council to adopt the report envisaged by Article IX:3 (b) of the Marrakech Agreement, was before the end-year-break in December. In order to facilitate reconvening the Council to consider a report in this regard, she proposed to keep the agenda item open. She encouraged Members to further consult on the proposal and explore possibilities to bridge the gap.
92. The Council took note of the statements made and agreed to keep the agenda item open.
93. At the Council for TRIPS' reconvened formal meeting of 10 December 2020, the Chair reported that, on 20 November and on 3 December, she had convened the Council in informal open-ended mode to take stock of developments since the suspension in October, and to continue the consideration of the agenda item in informal mode. At these meetings delegations had highlighted their common goal of providing access to high-quality, safe, efficacious and affordable vaccines and medicines for all. Delegations had also exchanged views, sought clarifications and provided information on the operation, implementation and impact of the requested waiver during these meetings.
94. The Chair said she also held consultations in the time-period between 26 November and 1 December, in order to seek delegations' views on (a) what kind of report the TRIPS Council could likely agree on at today's meeting, and (b) how substantive engagement could be further facilitated, given the importance of meaningful and focused discussions on the substance of the proposal. In these consultations she had detected an emerging agreement that the TRIPS Council should provide a communication to the General Council that would be neutral and factual, and reflect the state of play of discussions and the absence of consensus on the waiver proposal in the TRIPS Council at this time. Delegations had also seen a need to continue discussions on the matter within the TRIPS Council.
95. On the basis of these consultations, and after discussions in the informal open-ended meeting on 3 December, an agenda item for a status report on the consideration of the waiver request was put on the proposed agenda of the next General Council meeting scheduled for 1617 December. During the informal meeting of 3 December, the Chair had circulated draft language for such an oral status report with an invitation to Members to comment on this language by 7 December. On the basis of the comments that were received by the deadline, she had held further consultations on 8 and 9 December, and had circulated a revised draft status report.
96. In light of these informal meetings and consultations, she proposed the Council agree that she would deliver an oral status report to the General Council as follows:
At the meeting of the TRIPS Council on 15-16 October 2020, India and South Africa introduced document IP/C/W/669, requesting a waiver from certain provisions of the TRIPS Agreement for the prevention, containment and treatment of COVID-19, which had been circulated on 2 October 2020 and has since been co-sponsored by the delegations of Kenya, Eswatini, Pakistan, Mozambique, and Bolivia. The Council continued its discussions under that agenda item at its resumed meeting on 10 December 2020.
At those meetings, and at informal meetings on 20 November and 3 December, delegations highlighted the common goal of providing access to high-quality, safe, efficacious and affordable vaccines and medicines for all. Delegations exchanged views, sought clarifications and provided information on the waiver request but could not reach consensus. Delegations indicated a need for further discussions on the waiver request and views exchanged by delegations.
This means that the TRIPS Council has not yet completed its consideration of the waiver request and may not be able to do so within the 90 days stipulated in Article IX:3 of the Marrakesh Agreement. Therefore, the TRIPS Council will continue its consideration of the waiver request and report back to the General Council as stipulated in Article IX:3 of the Marrakesh Agreement.
97. The Council so agreed.
98. The Chair thanked all delegations, particularly those involved in the consultations, for the constructive spirit in which they had engaged in the discussions on this report. As regards the TRIPS Council's next steps, she noted that the next regular meeting is scheduled for 1011 March 2021. In order to allow for further consideration of the waiver request in the more immediate future, she proposed that the Council reserve 19 January and 4 February 2021 for meetings of the Council that could be dedicated to the discussion of the waiver request. The next regular meeting – with the usual complete agenda – would remain scheduled for 10-11 March.
99. The Council so agreed.
100. The representatives of Malaysia, Canada, Chile, Bolivia, Sri Lanka, Chad, Norway, Turkey, Singapore, Viet Nam, Eswatini, Egypt, Indonesia, the European Union, Japan, China, the United Kingdom, Oman, Mauritius, Bolivarian Republic of Venezuela, Ukraine, the United States of America, Ecuador, the Republic of Korea, El Salvador, New Zealand, Mozambique, Brazil, Jamaica, India, Pakistan, Switzerland, Israel, Colombia, Bangladesh, Tanzania, on behalf of the African Group, Botswana, South Africa, Nepal and Vanuatu took the floor.

IP/C/M/96, IP/C/M/96/Add.1