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

World Health Organization (WHO)

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

413.   Once again WHO welcomes the initiative of South Africa, India and all the co-sponsors of TRIPS Waiver proposal. In particular, in such an unprecedented pandemic situation, it is essential to explore all the avenues to promote timely, effective, affordable and equitable access to treatments, vaccines and other health technologies for patients in need around the world. The most important goal is to stop people dying and be able to respond to the pandemic as soon as possible. All mechanisms, including voluntary licences, technology pools, use of TRIPS flexibilities and waiver of certain intellectual property provisions or market exclusivities should be explored carefully. 414.   All these different initiatives have different characteristics and could be implemented in different ways and there are also existing challenges for the implementation of each of them. That is why they should be explored simultaneously according to the different needs of the countries and their ability to implement them at the national level. 415.   As you may know, WHO has complementary tools to promote further development of needed technologies and equitable access like the Solidarity Trials, ACT-A, COVAX facility, but strongly calls funders and industry to facilitate sharing of intellectual property, knowledge and data through the COVID-19 Technology Access Pool (C-TAP). Voluntary sharing and transparent, non-exclusive and public-health driven patent licensing and technology transfer agreements to promote competition and scale up manufacturing for detection, prevention and treatment are urgently needed. 416.   WHO C-TAP initiative could be a win-win solution to facilitate desperately needed production of vaccines, treatments and diagnostics, but the mechanism has not been utilized so far by owners of knowledge. WHO encourages Members and other stakeholders to promote the mechanism to achieve the common goals of stopping the pandemic and redressing the global social and economic crisis immediately. 417.   Unfortunately, only limited, exclusive and often non-transparent voluntary licensing is the preferred approach of some companies, and this is proven to be insufficient to address the needs of the current COVID-19 pandemic. 418.   Finally and in line with the WHO Global Strategy and Plan of Action on Public Health, Innovation and IP, WHO promotes the application and management of intellectual property in manner that maximizes public health and technology transfer, including using to the full the flexibilities included in the TRIPS Agreement and the Doha Declaration on TRIPS and Public Health. Since the beginning of the pandemic some countries have decided to make changes in their legislations to facilitate the use of such flexibilities or others have used the flexibilities to promote access in their territories. 419.   WHO is committed to continue the collaboration with WTO, WIPO and other international organizations to achieve these goal to respond to the pandemic and prepare for future challenges.

The Council took note of the statements made and agreed to revert to the matter at its next meeting.

52. The Chair recalled 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 by India and South Africa on 2 October 2020. It had since been co-sponsored by the delegations of Kenya, Eswatini, Mozambique, Pakistan, the Plurinational State of Bolivia, the Bolivarian Republic of Venezuela, Mongolia, Zimbabwe, Egypt and, most recently, by the African Group and the LDC Group.
53. At its previous meeting in February 2021, the Council had agreed to once again provide a "Status Report on the consideration by the TRIPS Council of the waiver proposal" to the General Council meeting of 1-2 March 2021. That Status Report had provided a factual overview of the waiver discussions in the Council and highlighted Members' common goal of providing timely and secure access to high-quality, safe, efficacious and affordable vaccines and medicines for all. It had reported that Members had exchanged views, asked questions, sought clarifications and provided replies, clarifications, and information, including through new documents, but had not been able to reach consensus, including on whether it was appropriate to move to text-based negotiations. Delegations had indicated a need for further discussions on the waiver request and views exchanged by delegations. The report had concluded that "[t]he 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."
54. The co-sponsors had signalled their openness to discuss the scope and duration of the waiver, as well as other questions delegations might have, in the context of text-based negotiations. Other delegations had emphasised a need for more discussions and were not ready to move towards textbased discussions. Members had also recognized the challenge arising from limited manufacturing capacity of vaccines and the inability of existing manufacturers to meet global demand. Members needed to engage in a candid and good-faith and evidence-based discussion on what was required to scale up global production in these unprecedented times of a public health crisis. She encouraged Members to engage in a result-oriented process that would contribute to an effective solution to boosting productive capacity for products that were essential to deal with COVID19 across the world. Swift action was required urgently to help scale up COVID-19 vaccine production and distribution. The Council needed to shift gears and move towards a solution-oriented discussion. The world was in desperate need for solutions. She urged delegations to work together and engage with this purpose in mind.
55. At the General Council meeting of 1 March 2021, the Director-General had said we need to do things differently. She had said "it cannot be business as usual. We have to change our approach from debate and rounds of questions to delivering results". She noted that she was not sensationalizing when she reminded delegations that it was a literally a life and death issue. People were dying at that very moment. She urged delegations to demonstrate their commitment to the overarching goals of universal and equitable access to COVID-19 medical products, not only in words, but through action. She wanted to remind Members of the heightened public interest and concern in this regard, that the world was watching, and that the Council should not fail.
56. There were a number of declarations and letters from civil society regarding the WTO's role in the COVID-19 pandemic, which had been made available on the WTO COVID-19 website under the section "Business/Society response". The previous day, she had received a letter from 'Global Nurses United', which would also be made available on that COVID-19 webpage.
57. She encouraged delegations to also address two issues in their interventions:
a. First, the practical question on how the Council should organize the consideration of this matter going forward. The next regular meeting of the TRIPS Council was scheduled for 89 June 2021. She encouraged delegations to share their views on how to consider the matter in the meantime, so that the Secretariat and the Chair can make any appropriate arrangements so that the Council can move swiftly to a balanced outcome and a landing zone on this urgent matter. The Secretariat had identified dates for possible additional meetings, which the incoming chair could use, depending on delegations' views; and
b. Secondly, whether and how to capture a number of shared understandings with respect to TRIPS flexibilities that had been highlighted. While Members were still discussing the waiver request, Members might wish to capture and communicate such shared understandings on the role of IP in the context of a pandemic, which could provide valuable elements for the broader understanding of the TRIPS Agreement; and might also provide positive guidance to prepare for future pandemics.
58. The representatives of India; Maldives; Zimbabwe; Qatar; Pakistan; Egypt; Nepal; Bangladesh; Vanuatu; Cuba; South Africa; Brazil; Ukraine; China; Nigeria; Mozambique; Jamaica; Tanzania, on behalf of the African Group; Chile; El Salvador; Cameroon, on behalf of the ACP Group; Colombia; New Zealand; Mongolia; Namibia; Canada; the United Kingdom; Switzerland; Japan; the European Union; Chinese Taipei; Indonesia; Singapore; Australia; the United States of America; and the World Health Organization took the floor.
59. The Council took note of the statements made and agreed to revert to the matter at its next meeting.

IP/C/M/98, IP/C/M/98/Add.1