Minutes - TRIPS Council - View details of the intervention/statement

H.E. Ambassador Xolelwa Mlumbi-Peter (South Africa)
1254.   Thank you, Madam Chair, for convening this very important meeting. We also welcome your efforts in finalising the TRIPS Council Report to the General-Council, in particular in reflecting the factual discussion on the Waiver proposal. 1255.   Indonesia has followed the discussion with great interest and believes that the debate over the proposal has provided enlightenment on this important issue. Despite the huge gap among the positions of Members, we are of the view that this initiative clearly underlines the deep relation between TRIPS Agreements and Public Health. 1256.   Indonesia would like to reiterate its support for the co-sponsors' proposal for a waiver from certain provision of the TRIPS Agreement for the Prevention, Containment and Treatment of COVID19. 1257.   This initiative offers a different perspective to address global public health crisis by addressing one of the core challenges in rapid, equitable and affordable access to health caused by protection of intellectual properties to much needed diagnostic kits, therapeutics, vaccines, and other medical equipment to combat COVID-19. This initiative, as we observe and analyse, is legal and protected under the Marrakesh Agreement. 1258.   Indonesia would like to add further examples of why intellectual property rights pose serious barriers to access to health, aside from what has been provided by the co-sponsors and other Members. 1259.   The case of access to Remdisivir, as explained by the delegation of Pakistan in the previous week, is also experienced by Indonesia. We recently failed to convince Gilead to expand its production in Indonesia through voluntary licensing, to address shortages and affordability of the medicine. Importing the medicine was factually more costly and difficult to get because of limited supply and higher prices for the fulfilment within our region. This selective and secretive production agreement is one of the prime examples on the businessas-usual model. 1260.   Indonesia also experienced a different case where IP became a serious threat to Indonesia's public health, despite Indonesia's paramount contribution to the development of H5N1 vaccines. 1261.   On August 2006, Indonesia made an unprecedented move by announcing that it will make genomic data on bird flu viruses accessible to anyone. Indonesia was of the view that opening up global access could be the key to unlocking such vital information as to the origin of the virus, how it causes disease, how it is mutating, the sources of infection, and how to prevent or cure the virus. 1262.   Despite the fact that, following Indonesia's move, developing countries have supplied H5N1 virus to WHO Collaborating Centres for analysis and preparation for vaccine production, the resulting vaccines produced by pharmaceutical companies are in fact unavailable for developing countries such as Indonesia. 1263.   The system behind this unfair practice is closely related to intellectual property protection of the vaccines development for pharmaceutical companies that benefitted from the openness of Indonesia and other developing countries. It was based on this situation, Indonesia wanted a material transfer agreement for each virus sample sent to foreign labs, specifying that the sample will only be used for diagnostic purposes and not for commercial gain. 1264.   Under that proposal, any commercial use of the virus would require prior consent of the country providing it. By retaining the intellectual property rights, Indonesia believes, a country could allow access to global vaccine stockpiles at an affordable price. 1265.   The examples we put forward are only a few illustrations that voluntary mechanism or business as usual is not enough to address the pandemic. In addition, our example also highlighted that IP could become a serious barrier to access to medicines, while in reverse, transparency and global collaboration is the catalyst and the enabler to enhance access to health. 1266.   To conclude, when a country, as some organizations inform, can order and secure access to vaccines five times than its population, while other countries are struggling to get even the slightest part of it, this only confirms that there is a significant flaw in the business-as-usual model when confronting a global pandemic. 1267.   But maybe, and we significantly doubt it, the enactment of this waiver would not have direct impact to access to medicine, vaccines and other products for treatment and containment of COVID19. But when we are dealing with human lives in scale of this COVID-19 pandemic, it is better to err on the side of caution than taking the risk by fully relying on market or voluntary actions.
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