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

H.E. Ambassador Xolelwa Mlumbi-Peter
66.   We would like to thank you for your report, which is factual and reflects the developments that have taken place since the last report to General Council in December 2020. We look forward to the discussions in the General Council on the report. We would like to thank and welcome the Africa Group and the LDC Group as the latest co-sponsors of the Waiver Proposal. The Proposal now reflects the voice of 57 WTO Members with many more supporting from the floor since its introduction in this Council in October 2020. 67.   So far around 200 million vaccine doses against COVID19 have been administered worldwide. The UN Secretary General, in his press briefing last week noted that the progress on vaccinations has been wildly uneven and unfair, more than 130 countries have not received a single dose. He warned "If the virus is allowed to spread like wildfire in the global South, it will mutate again and again and that this can prolong the pandemic significantly, enabling the virus to come back to plague the global North." 68.   When we introduced the Waiver last year, we had cautioned against such a scenario and therefore made the case for removing IP barriers temporarily to ramp up rapid global manufacturing. It is unfortunate that our apprehensions, subsequently supported by evidences, were dismissed as hypothetical as the vaccines were yet to arrive at that time. We are not feeling happy about being proven right in raising concerns in advance. Today our fears have not only proven to be true but the very Members who dismissed our argument in this Council that there would be shortages of vaccines if manufacturing remains limited, are themselves facing shortages in their jurisdictions even after having successfully negotiated advance purchase agreements of volume way beyond their need. That the situation could be this worse, even the proponents of Waiver did not predict. 69.   On its part, India has supplied 28.84 million vaccine doses to 26 countries as on 21 February 2021 under its "Vaccine Maitri" i.e. Vaccine Friendship Initiative. 48 more countries will be supplied in the coming days ranging from Europe, North America, Latin America, and Caribbean to Africa, SE Asia and the Pacific Islands. India has also gifted 200,000 doses for the UN Peacekeepers. The UN Secretary General has stated that India has been a global leader in pandemic response efforts having provided critical medicines, diagnostic kits, ventilators and personal protective equipment to more than 150 countries. Despite scarce resources and a population of more than 1.3 billion, we are doing our bit towards equitable delivery of vaccines. If the existing global manufacturing capacity can be used for mass manufacturing by providing legal certainty to manufacturers over use of COVIDrelated IP, which is the chief objective of the Waiver, then humanity can accelerate the fight to win over the virus. 70.   As we reiterated at the past meeting, proponents answered all questions posed in various sessions of the TRIPS Council, yet certain delegations have this tendency to ask further questions and delay the start of text-based negotiations. With the experience learnt during the last four months after the first emergency use authorisation of vaccines, we need to close the evidentiary loop and get down to textual negotiations that can further refine the Waiver Proposal that we tabled. What we have seen in last few meetings is a repetition of similar questions and maybe answers to some of those questions lie in text-based negotiations. Moving to a text-based negotiation may appear to be yielding from the high moral ground of being the sole protectors of IP rights for some Members, but not doing so means a willingness to stand by a poor choice, devoid of ground realities and just opposite to what is the need of the hour. 71.   The delegations that oppose the Waiver have argued on one hand that the Waiver, if granted, will not result in augmenting the manufacturing capacity and on the other hand, they argue that the Waiver will impact the commercial interests of existing IP holders as lot of manufacturing could come into play without agreement with the IP holders. We would like to understand this dichotomy that if the Waiver will not lead to an increase in manufacturing capacity, meaning, no new manufacturers will enter into production of COVID products even with the proposed Waiver in place, then how will the commercial interests of existing IP holders be impacted? On the other hand, if manufacturing is going to increase significantly and are thereby impacting commercial interests of IP right holders, then are we not agreeing that final objective in the present scenario is to increase manufacturing. 72.   Moving on to COVAX - even its creators have admitted the issues with the mechanism like lack of funding and its inadequacy to address supply side constraints. DG, WHO in a recent statement said and I quote, 'The ACT Accelerator and COVAX Facility were created to increase equity. But with every passing day, that goal is at risk.' He called on all countries to respect COVAX contracts and not compete with them. He also mentioned that 'we need an urgent scale-up in manufacturing to increase the volume of vaccines'. There is no alternative to augmenting manufacturing to address supply side constraints of goods critical for prevention, containment and treatment of COVID-19, and allocation of money alone for securing such supplies would not suffice. The Waiver Proposal, which seeks to address supply-side bottlenecks, will thus further help the COVAX mechanism to achieve its goal. 73.   Regarding the proportionality of the Waiver, almost every country implemented lockdown in some form or other to curtail the spread of COVID. That does not mean that authorities were against the principle of "right to freedom of movement". Similarly, governments worldwide intervened to suspend air transport and restrict mobility in order to prevent the spread of coronavirus. Sectors like civil aviation, travel and tourism, hospitality and even small business activities are facing continued restrictions and thereby being severely impacted by such state interventions. These sectors are also important for the global economy, for growth, for employment. Certainly, governments are not against the interest of these sectors. We would like to ask the membership that why commercial interests of only few companies are so sacrosanct? If it is to preserve incentives to innovate, then such commercial loss, to the tune of few tens of billions of USD at the maximum, can always be compensated by further incentives through public funding. In any case, such loss to few companies is significantly lower than the overall loss to global economy, estimated to be USD 9.2 trillion if the international community fails to ensure developing economy access to COVID-19 vaccines, as per the study by International Chamber of Commerce. The global community has resorted to exceptional measures in the exceptional circumstances of COVID pandemic, and the Waiver should be seen in similar vein. 74.   The TRIPS Agreement has been in force since 1995. But never, in the history of medical science, have vaccines been developed in such a short span of time of less than one year. This proves that it is not the IP system alone that has delivered, but also the public funding, the institutional support in terms of research contributions by public universities, the global collaboration in sharing of genome sequencing data and public health information that has led to the development of successful vaccines in record time. The proponents respect the intellectual property rights and their value as incentives for innovation, but COVID19 pandemic being unprecedented as it is, where research and innovation has mostly been spearheaded by massive public funding, expedited regulatory approvals, and global collaboration, we need to put lives before private profits. 75.   Some Members have questioned that how fast manufacturing can be ramped up once the Waiver is granted. Once the Waiver is in place, the existing manufacturing capacity worldwide can be put to immediate use for production of COVID products. Our past experience suggests that if supported with adequate regulatory framework, vaccines are relatively quick and inexpensive to make. The other option is to scale up the existing capacity through brown-field investments which can be done in a few months. Yet another option is to invest in creating new capacity through green-field investments, a matter of a few quarters. 76.   Some other countries have questioned that how the abuse of Waiver would be avoided and how would it be ensured that it does not become permanent. We are seeking a temporary Waiver, and we have left the time period to be negotiated by Members in TRIPS Council. Moreover, Waiver, once granted, will be reviewed annually by the General Council. The duration could be some fixed number of years together with a conditional criteria for termination. We want to have frank discussions on the text of the Waiver, relating to both its duration and scope, in order to find answers to these questions and to find a landing zone to operationalise the Waiver in the shortest possible time. We cannot continue to engage in endless discussions while millions of lives are lost to the coronavirus pandemic. We need concerted efforts by all WTO Members to ensure that the WTO makes a meaningful contribution to defeat COVID-19. COVID-19 has shown that our fates are inextricably linked. Whether we win or lose, we will do so together. The Waiver provides an opportunity to make a winning attempt, and we hope Members will make that attempt.
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