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

H.E. Ambassador Xolelwa Mlumbi-Peter

9.   We thank you for your report on the activities of the TRIPS Council's consideration of the Waiver Proposal and further consultations you held in small group formation as well as the details put forward in the proposed oral report to be presented to the General Council in March 2021. We would like to welcome the African Group and LDC Group to the fold of co-sponsors, the increased numbers of delegations in our ranks demonstrate the growing importance of the Waiver Proposal and the need to scale up production in order to ensure equitable and timely access to COVID-19 medical products, including vaccines, therapeutics, diagnostics and other equipment. 10.   Moving forward, discussions cannot continue to be mired in the evidentiary loop that we have been engaged in over the last few months. Co-sponsors have also made it clear that we want to move to text-based discussions, we stand ready to discuss the scope and duration of our proposal in light of comments and observations that Members have made. 11.   A pandemic like COVID-19 has not been seen in a century, and much remains unknown and evolving about the situation and the virus that causes it. While many regard the virus as a sort of black swan, it was not entirely unexpected and was preceded by several other viruses and semiglobal pandemics in recent times. As much as we may hope that something like this will not happen again, the probability is there that the next event may be even more cataclysmic. Many of the most serious global threats today involve a high degree of uncertainty. Under such conditions, people are notoriously unwilling to make sacrifices for others when the benefits are uncertain. A good example of this type of behaviour is vaccine nationalism, which denotes self-prioritization to the exclusion of others, as many rich government have done on the assumption that individual action can yield results on its own. However, this is not the case, the idea that a vaccine rollout will be the deus ex machina is misplaced, we cannot put the virus back into its bottle, we just cannot go back to the old normal. 12.   According to available data, the United States, the United Kingdom and the European Union account for about 50% of the over 200 million vaccines administered globally as at 22 February. Countries opposing the TRIPS Waiver Proposal account for 60% of the globally administered COVID19 vaccines. Reportedly, just ten countries have administered 75% of all COVID-19 vaccines. More than 130 countries have not received a single dose. The WTO has to pay heed to the caution of the Director General of WHO: "The longer it takes to suppress the virus everywhere, the more opportunity it has to change in ways that could make vaccines less effective – an opportunity to mutate".1 13.   Sir Jeremy Farrar, the head of Wellcome Trust has also highlighted that "Immunising a lot of people in a few countries while leaving the virus unchecked in large parts of the world would simply allow more variants to emerge in these places. And the more that happens, the higher is the risk that the virus will evolve to an extent that our vaccines, treatments and tests are no longer effective" adding that "We've got to understand this is a global problem that must be dealt with globally."2 Our TRIPS Waiver offers a global solution. The world is facing its worst ever crisis since perhaps World War II, and the response of WTO Members opposing the Waiver Proposal is to engage in "business as usual" approaches, and for WTO to do nothing to address IP monopolies around the technology and know-how, to scale up production and to bring this crisis to an end. 14.   Many of the opposing WTO Members, under pressure from their pharmaceutical industry have for more than two decades, been known to dissuade developing countries from incorporating TRIPS flexibilities in their national law and using such flexibilities to promote access, and yet now insistently assert that such sufficient flexibilities exist, although we have presented concrete arguments against it. 15.   These same WTO Members stress on "business as usual voluntary licensing" as the way out of this pandemic and yet one year on, this "business as usual" approach premised on voluntary, secretive, limited and restrictive licensing has failed to leverage global expertise and capacity to scale-up manufacturing and deliver equitable access. Instead this approach has limited competition, and is artificially constraining global supply. These "business as usual" approaches championed by opposing countries is not the global solution but really the root cause of why to date we have vaccinations that are "wildly uneven and unfair" as pointed out by the UN Secretary General.3 At the current vaccination rate, it will take an estimated 4.8 years to cover 75% of the population with a two-dose vaccine, according to Bloomberg on the path to immunity around the world.4 And sadly, this is probably an optimistic scenario. Co-sponsors have often called for the open sharing of vaccine manufacturing technology, IP and know-how through the COVID-19 Technology Access Pool (CTAP). 16.   We want to clarify that as co-sponsors of the Waiver Proposal, we have always said that we welcome global multilateral cooperative initiatives such as the ACT-Accelerator. The objective of COVAX, its vaccine arm, is laudable, as are financial contributions from WTO Members to this end. However, we have to confront the limits of the architecture of such an approach, it is not meant to address all the needs of developing and least developed countries. A rather large gap exists between what COVAX or ACT-A can deliver and what is required in developing and least developed countries. In this case demand-side requirements outstrips supply-side constraints. Irrespective of the amount of money any of the donor country may throw at the problem, the model of donation and philanthropic expediency cannot solve the fundamental disconnect between the monopolistic model it underwrites and the very real desire of developing and least developed countries to produce for themselves. The problem with philanthropy is that it cannot buy equality. Yesterday the DG of WHO warned that: "Money is not the only challenge we face. If there are no vaccines to buy, money is irrelevant. Even if we have the funds, we can only deliver vaccines to poorer countries if high-income countries cooperate in respecting the deals COVAX has done, and the new deals it is doing."5 Even in light of all the additional pledges of monetary support, the ACT Accelerator still faces a gap of at least 22.9 billion dollars to fully financed. 17.   The Waiver Proposal constitutes a very real compromise that will immediately enable countries to tap into unused production capacity by accessing spare capacity in the developing world which will satisfy the ongoing demand for COVID-19 vaccines (including therapeutics and diagnostics) and will also negate the need for any donations from rich countries. Take the African continent for example: as a whole, Africa currently imports more than 80% of its pharmaceutical and medical consumables. This is unsustainable and puts the continental population of 1.3 billion people at the mercy of a few monopolistic companies. This is a recipe for disaster as we have witnessed not only with the COVID19 pandemic but with all other diseases and pandemics that continue to affect the continent. 18.   We recalled in our intervention of 4 February 2021, in which we quoted a study commissioned by the international Chamber of Commerce (ICC) Research Foundation which found that the global economy stands to lose as much as USD 9.2 trillion if governments fail to ensure developing country economies access to COVID-19 vaccines. We have already argued that there are good moral and legal grounds, as recognized under the TRIPS Agreement, to pass the Waiver Proposal. In addition, this study underscores the importance of ensuring access by developing countries to effective vaccines in order to mitigate the economic and social consequences in the years ahead. We have already indicated that the artificial shortage of vaccines is primarily caused by the inappropriate use of intellectual property rights. This cannot be allowed to continue. It is now apparent that poor countries would have to wait a long time to access vaccines, during this time the virus will mutate giving rise to strains that will undermine the efficacy of existing vaccines. COVID-19 does not respect national borders; nor does it care about the gross domestic product of a country, no country in the world can insulate itself, even the best plans will be laid to waste. Let us ensure that everyone has access to effective vaccines in the shortest possible time. 19.   In closing, as many co-sponsors have reiterated, we are ready to go to a text-based discussion in order to arrive at an immediate solution. This will not only save lives but also enable us to return to a situation of relative normalcy. No one is safe until everybody is safe.

The Council so agreed.
1. The Chair said that the "Proposal for A Waiver from Certain Provisions of The TRIPS Agreement for the Prevention, Containment and Treatment of Covid-19" had been circulated in document IP/C/W/669 by India and South Africa on 2 October 2020 and had since been co-sponsored by the delegations of Kenya, Eswatini, Mozambique, Pakistan, Bolivia, Venezuela, Mongolia, Zimbabwe, Egypt and – most recently – the African Group and the LDC Group.
2. At the Council's last formal meeting on 10 December 2020, the Council had agreed to provide a 'Status Report on the consideration by the TRIPS Council of the waiver proposal' to the General Council meeting of 16-17 December 2020. That Status Report provided a factual overview of the waiver discussions in this Council and highlighted Members' common goal of providing access to high-quality, safe, efficacious and affordable vaccines and medicines for all. It reported that Members had exchanged views, had provided information and sought clarifications, but had not been able to reach consensus. It concluded that,
"[T]herefore, 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."
3. Since then, the Council had continued its consideration of the waiver request at informal open-ended meetings on 19 January and 4 February 2021, including on the basis of three new submissions circulated by the co-sponsors on 15 January 2021, and which bear the document numbers IP/C/W/672, IP/C/W/673 and IP/C/W/674.
4. She said that, after the informal open-ended meeting on 19 January, she had held consultations with a number of delegations on 27 January 2021 to encourage more solution-oriented discussions and to explore in concrete terms whether a possible landing zone could exist – in terms of concrete elements and outcomes – and to hear views on our report to the General Council. In preparation of that meeting, she had requested delegations consider three questions, namely (1) which elements of the Waiver were critical to deliver a multilateral solution on the common objective of ensuring swift, timely, affordable and equitable access to the vaccines and therapeutics to combat the COVID19 pandemic, (2) whether the discussion had provided clarifications about core elements of the TRIPS Agreement in relation to public health and how these can be captured to establish a common understanding; and (3) what were delegations' views on the timing and format of deliberations towards a report to the GC as communicated by the TRIPS Council in December 2020.
5. While delegations' responses to these questions did not indicate any significant shifts in positions, a number of delegations signalled openness to hearing concrete evidence of any IP-related challenges that would be related to or arising from the TRIPS Agreement, and to seek consensual, proportionate and commensurate solutions to any such problems where necessary. The co-sponsors also indicated that they were ready to consider the contours, the scope and the time frame of the waiver proposal, and indicated that they would once again reach out to delegations individually for further discussions.
6. At the informal open-ended meeting on 4 February 2021, Members had continued their consideration of the waiver request. She said that, from the discussions at these meetings, it seemed that there remained differences in Members' approaches to the waiver proposal. A number of delegations had indicated a need for more evidence-based discussions in the TRIPS Council to understand the issues underlying the waiver request, as well as clarifying the impact and operation of the waiver in practise. The co-sponsors had made numerous interventions – and circulated a number of new documents – in response to questions and concerns raised by delegations and had indicated that they would wish to advance to text-based negotiations.
7. She said that, as regards the question about the Council's report to the General Council, most delegations indicated a preference for a factual report that would once again reflect the state of play of discussions among Members, following the same lines as the status report delivered in December 2020.
8. As foreshadowed at the informal open-ended meeting on 4 February, she had circulated draft language for such a report on 9 February, with an invitation for Members to comment on this language by 12 February 2021. On the basis of the comments that were received by the deadline, she had held further consultations on 16 February, and circulated a revised draft status report in document JOB/IP/42 on 17 February, which she hoped could be adopted today. The item had also been placed on the agenda of the General Council meeting scheduled for 1 March. This concluded the summary of the Council's activities since its last formal meeting.
9. Turning to the revised language for the oral status report to the General Council which had been circulated in document JOB/IP/42 on 17 February 2021, she noted that the African Group and the LDC Group had now been listed as co-sponsors of the waiver proposal, and she suggested that this be also reflected in the first paragraph of the status report for the purposes of accuracy. She therefore 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, Mozambique, Pakistan, Bolivia, Venezuela, Mongolia, Zimbabwe, Egypt, the African Group and the LDC Group. The Council continued its discussions under that agenda item at informal meetings on 20 November and 3 December, as well as at its resumed meeting on 10 December 2020. Following the status report to the General Council on 16-17 December 2020, the Council continued its consideration of the waiver request at informal meetings on 19 January and 4 February 2021, and at its formal meeting on 23 February 2021.
At those meetings, delegations highlighted the common goal of providing timely and secure access to high-quality, safe, efficacious and affordable vaccines and medicines for all. Delegations exchanged views, asked questions, sought clarifications and provided replies, clarifications, and information, including through documents IP/C/W/670, IP/C/W/671, IP/C/W/672, IP/C/W/673 and IP/C/W/674, on the waiver request but could not reach consensus, including on whether it is appropriate to move to text-based negotiations. 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. The TRIPS Council will therefore continue its consideration of the waiver request and report back to the General Council as stipulated in Article IX:3 of the Marrakesh Agreement.
10. The Council so agreed.
11. 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 in this regard, this item would now be on the agenda of the next regular meeting, scheduled for 10-11 March 2021. After that, the next regular meeting of the TRIPS Council was scheduled for 8-9 June 2021. She said delegations might wish to consider how to organize the Council's consideration of this issue going forward, would be invited to also share their views in this regard, so that the Secretariat and the Chair could make any appropriate arrangements.
12. In her view, the single most important priority of the global community was to stop the COVID19 pandemic, halt its rapid transmission, reduce the risks of variants and reverse the trend of consequential global distress. This goal is only achievable when everyone, everywhere can access the health technologies they need for COVID-19 detection, prevention, treatment and response. This was a goal that Members of the WTO have consistently repeated in their statements. Now more than ever, international cooperation and solidarity were vital to restore global health security, now and in future.
13. The business community is calling for a coordinated approach to vaccine access in view of the risks to the global economy inherent in an uncoordinated approach. The WTO's four DDGs have also issued a statement calling for heightened international cooperation, including ensuring the global availability of vaccines. Importantly, that the war against the pandemic can only be won when universal coverage in vaccination is achieved. The new WTO DG had stated that for the global economy to return to sustained growth, the global community would need to get a tight grip on the pandemic by intensifying cooperation to make equitable and affordable access to vaccines, therapeutics, and diagnostics a key plank of the recovery.
14. In the informal meeting of 4 February 2021, many Members had recognized the challenge arising from limited manufacturing capacity of vaccines and the inability of existing manufacturers to meet global demand. She urged Members to engage in a candid and good-faith discussion on what is required to scale up global production in these unprecedented times of a public health crisis. She expressed her hope that Members would engage in a solution-oriented process that will provide an effective solution to boosting productive capacity for products that are essential to deal with COVID-19 across the world. The WTO membership should demonstrate its commitment to the overarching goals of universal and equitable access to COVID-19 medical products not only in words, but through action. She also reminded Members of the heightened public interest and concern in this regard.
15. The Chair invited Members to take the floor.
16. The representatives of Chile; Tanzania; South Africa; Egypt; Colombia; Chad; Pakistan; Bangladesh; Mozambique; India; Indonesia; El Salvador; Venezuela; Sri Lanka; Namibia; Nepal; Nigeria; China; the European Union; the United States; Norway; Switzerland; Mali; Singapore; Canada; the United Kingdom; Australia; Japan; and the Holy See took the floor.
17. The Chair said that it seemed from delegations' statements that there was still no consensus on this waiver request at this point. She noted that the proponents had made further efforts to address a number of questions on the functioning and the impact of the requested waiver, which delegations have raised in the last meetings and in a recent submission. In light of this, she encouraged delegations to continue to engage with each other, and to seek common ground in regard to the subject matter of the waiver request, including in relation to scope and substance – as indicated by proponents in order to achieve the common objective shared by all.
18. She emphasized that the detailed exchanges and discussions that Members had had in the context of the waiver proposal were extremely useful and valuable. While Members were still discussing the waiver proposal before them, it was her impression that these discussions had highlighted a number of shared understandings with respect to TRIPS flexibilities which Members might wish to reflect on and explore further. COVID-19 may not be the only pandemic. Therefore, the TRIPS Council might wish to highlight and communicate such shared understandings on the role of IP in the context of a pandemic, as these could provide valuable elements and could help prepare for future pandemics.
19. She said that she herself, and the Secretariat, were always available to help facilitate any path forward that Members might wish to explore in this regard
IP/C/M/97, IP/C/M/97/Add.1

1 https://www.who.int/director-general/speeches/detail/who-director-general-s-opening-remarks-at-munich-security-conference---19-february-2021

2 https://www.theguardian.com/world/2021/jan/31/jeremy-farrar-until-we-are-all-safe-no-one-is-safe-covid-is-a-global-problem

3 https://news.un.org/en/story/2021/02/1084962

4 https://www.bloomberg.com/graphics/covid-vaccine-tracker-global-distribution/

5 https://www.who.int/director-general/speeches/detail/who-director-general-s-opening-remarks-at-the-media-briefing-on-covid-19-22-february-2021