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

H.E. Ambassador Dagfinn Sørli
12; 13 PROPOSAL FOR A WAIVER FROM CERTAIN PROVISIONS OF THE TRIPS AGREEMENT FOR THE PREVENTION, CONTAINMENT AND TREATMENT OF COVID-19; DRAFT GENERAL COUNCIL DECLARATION ON THE TRIPS AGREEMENT AND PUBLIC HEALTH IN THE CIRCUMSTANCES OF A PANDEMIC
283.   My delegation has made an extensive statement under these two agenda items at the informal part of the Council meeting of 22 February. We request that this statement be included in the minutes of the present formal meeting. We will make it available to the Secretariat for this purpose. 284.   I will only sum up a few key points: we pointed out that it is important to look at facts and figures and relevant developments on the ground in order to be aware of where we actually stand today in our common fight against the COVID-19 pandemic and what the real challenges are that still lie ahead of us. In our statement of 22 February, we presented such facts and figures for an evidence-based discussion and hopefully a mutually agreeable decision by the Council. 285.   On that basis, we concluded that concerning the TRIPS Waiver Proposal, we need a reality check in the Council's discussion. Proponents claim that the TRIPS waiver is needed to broaden the global manufacturing capacity to allow all WTO Members sufficient access to COVID-19 vaccines. Data shows we have sufficient capacity today. The established and trusted TRIPS and international IP framework has helped - and enabled - us to get to this point. Access to and manufacturing capacity of COVID-19 vaccines and therapeutics are no longer the bottlenecks we face. WHO's COVAX global vaccination campaign is now facing a lack of demand - not of supply. Today, this applies also to Africa. To reduce their stocks, some African countries have asked COVAX to pause vaccine deliveries and postpone them to the second half of 2022. 286.   The African Union Centre for Disease Control and Prevention confirms that their primary challenge for vaccinating the continent is no longer supply shortage, but the logistical challenges to vaccinate at scale and vaccine hesitancy. These challenges are not connected to IP or the TRIPS Agreement - nor would waiving patent rights or the TRIPS Agreement assist WTO Members in addressing these challenges. Having said this, while being an ambitious and long-term goal, sustained investment in geographically diversified manufacturing capacity and new technologies are key as part of future preparedness to ensure early access in a next pandemic also for low and middle-income countries (LMICs). This was stressed during the recent meeting of the Multilateral Leaders Task Force on COVID-19, on 1 March. To this effect, close collaboration between vaccines developers, manufacturers, international organizations – including the WTO – and governments is essential. The goal of building up diversified global manufacturing capacity can only be pursued and successfully achieved within the regulatory framework of the WTO and its TRIPS Agreement. 287.   Switzerland is convinced that for countries wishing to develop their own manufacturing capacity in the vaccines sector, a TRIPS waiver would work against their own interests. Vaccine developers would be dis-incentivized to invest or license their technology or know-how to manufacturers in countries without such a framework to build their partnership on. A core lesson for the WTO and for its regulatory framework in future pandemics is that there is a need to ensure the smooth running of supply chains, avoiding their disruption through measures such as export restrictions or other trade barriers imposed by WTO Members. A well-functioning and trusted intellectual property rights system, as provided by the TRIPS Agreement, will continue to be crucial to provide the necessary incentive for partnerships to come together to develop and manufacture at global scale new - and hopefully again effective - vaccines and therapeutics against a next pandemic virus. 288.   I refer here to the presentation of the WTO Secretariat this morning under agenda item 3, and more specifically to the statistical information given therein on the hundreds of manufacturing partnerships that have formed during 2021 to jointly achieve a global production of more than 13 billion of COVID-19 vaccine doses by early this year, and since then, growing every day. 289.   Finally, regarding the small group process initiated and led by Dr Ngozi Okonjo-Iweala, Director-General of the WTO and ongoing now for almost three months, we flagged our concerns that this process does not meet WTO principles of inclusiveness and transparency. We also made clear that delegations excluded from these talks should not be expected to simply wave through an outcome this small group process may come up with. Switzerland's statement at the informal meeting held on 22 February 2022 Draft report to the General Council 290.   Thank you, Chair, for consulting Members on the status report to this week's meeting of the General Council. My delegation fully supports your report. Dr Ngozi Okonjo-Iweala, Director-General of the WTO's small group process ("QUAD-process") 291.   We thank Ms Anabel González, Deputy Director-General of the WTO and the HE Ambassador João Aguiar Machado (European Union), HE Ambassador Xolelwa Mlumbi-Peter (South Africa) and HE Ambassador Maria PAGAN (United States) for a first brief up-date on the small group process initiated by Dr Ngozi Okonjo-Iweala, Director-General of the WTO. While we appreciate Dr Ngozi Okonjo-Iweala, Director-General of the WTO and her facilitators' efforts to find an agreement among Members, we register our serious concern with the very restrictive format chosen for this process: a process that has been ongoing now for almost two months. This format does not correspond to the fundamental WTO principles of inclusiveness, transparency or regular reporting to the membership. My delegation is also concerned about the imbalance of representation in this small group process of which we should be part. My delegation believes that an inclusive and transparent process is indispensable if we are to find a mutually agreeable outcome on this matter. Facts and developments on the ground 292.   To have a useful and objective discussion under these two agenda times, it is important to look at the facts and take into account the developments on the ground since the Council last met. According to the scientific online publication "our world in data" (a project of the Global Change Data Lab), the rate of vaccination on all continents, except Africa, is now above 65%. South America being in the lead, with more than 80% and Asia coming second, with more than 70%, ahead of Europe or the United States. 293.   Global manufacturing capacity started at zero early in 2021 and has since massively increased to more than 1.5 billion doses per month by the end of 2021. Capacity has grown to an extent that some manufacturers have started to reduce output since demand is decreasing. One player in this massive increase of manufacturing was COVAX, the global COVID-19 vaccine facility co-founded by the WHO. COVAX had entered into contractual arrangements with manufacturers in developing countries for the production of these vaccines for low- and middle-income countries (LMICs). 294.   Vaccine developers had licensed their innovative COVID-vaccines to these manufacturers, based on the TRIPS Agreement and the IP system. It was export restrictions which stopped the delivery of these vaccines under the COVAX programme to many LMICs for much of 2021. Today, however, supply of and access to vaccines is there, including in Africa. 295.   According to the WHO regional office, there is now a steady supply of doses flowing in. According to the WHO office, African countries will have adequate access to COVID19 vaccine supplies in 2022. In fact, many struggle with administering the number of doses delivered. According to recent data from Airfinity, a total stock of 780 million vaccine doses supplied to lowand middle-income countries await their administration to the population. 296.   The numbers of the African Union Centres for Disease Control and Prevention (Africa CDC) show that there is a wide gap in many African countries between the vaccines supplied and the vaccines administered. The low figures of vaccinations are thus not a problem of access to vaccines anymore, but one of administering the vaccines at disposal. 297.   At the WTO Technical Workshop on COVID-19 Vaccines R&D, Manufacturing and Distribution, 11 February 2022, UNICEF informed that the COVAX programme was able to deliver over 600 million vaccine doses in Q4 2021. However, many recipient countries were overwhelmed by this large volume which is why they asked to reduce deliveries in Q1 2022 to give them time to reduce their stockpiles. The main challenge today is thus the effective distribution of available vaccines to the populations, thus making vaccination happen and bring the jabs in people's arms, particularly in low-income countries. Link to pandemic preparedness process 298.   These facts and developments recall the intrinsic link of our discussion here to the broader agenda of WTO's pandemic response. Any WTO outcome will need to be comprehensive and balanced in order to be meaningful. IP has played a positive role in fighting this pandemic effectively. This positive role of IP and TRIPS must be reflected in any such outcome. 299.   As part of a holistic pandemic response, the WTO needs to undertake efforts to improve vaccine readiness, address challenges linked to transparency, burdensome customs procedures, but mainly, to export restrictions – which, as mentioned, have proved a significant barrier to access, including under the COVAX facility. Waiver Proposal and pandemic preparedness in the future 300.   Finally, as part of improving pandemic preparedness in the future, building up local and regional manufacturing capacity in the vaccines and pharmaceutical sector is important, particularly in Africa. A number of initiatives in this regard are already underway, be it by the private sector or in public private partnerships, including under the umbrella of relevant international organizations. Recent examples of such initiatives include the mRNA tech transfer hub in South Africa, BioNTech's delivery of turnkey manufacturing facilities to Rwanda, Senegal, and potentially South Africa by mid2022. Johnson & Johnson's licence agreement with Aspen Pharmacare in South Africa for the production of 500 million doses in 2022 or the agreement between AstraZeneca and Brazil's Fiocruz Foundation for 120 million doses and Insud Pharma in Argentina for the production of 200 million doses, to name just a few. 301.   More can and should be done. For these partnerships and long-term ventures to be successful, however, the WTO regulatory framework will remain instrumental, including IP and TRIPS, building necessary bridges between these partners and allowing for trusted and effective collaboration. In other words, IP has been, is and will be part of the solution in the COVID-19 crisis. Preparedness for future pandemics must therefore build on the existing WTO IP framework and not undermine it.
82. The Council so agreed.
60. Noting that most delegations had made one single statement under these two agenda items in the past, the Chair suggested that these items be once again taken up together.
61. He 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 originally submitted by India and South Africa; and circulated as document in October 2020. A revised proposal had been circulated by the co-sponsors in document on 21 May 2021, which is now co-sponsored by 65 delegations.
62. He further recalled that in June 2021, the European Union had submitted a communication on "Urgent Trade Policy Responses to the COVID-19 Crisis: Intellectual Property", circulated in document , which had been followed by a "Draft General Council Declaration on the TRIPS Agreement and Public Health in the Circumstances of a Pandemic", circulated in document .
63. The Chair recalled that at the last formal meeting on 22 February 2022, 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 23-24 February 2022. That Status Report had provided a factual overview of the waiver discussions in this Council and had highlighted Members' common goal of providing timely and secure access to high-quality, safe, efficacious and affordable vaccines and medicines for all.
64. It 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.
In addition, the TRIPS Council will also continue in the same manner its consideration of the other related proposals by Members."
65. The Chair recalled that at the Council's meeting in February 2022, DDG González and a number of delegations involved had also briefly shared information on the high-level consultations concerning these items at ministerial and senior officials' level. A number of other Members had also emphasized the need for transparency and inclusiveness in any process that was intended to lead to a consensus- based outcome. The Chair encouraged delegations to provide as much information as possible on their contacts and activities in this regard.
66. The representatives of South Africa; the European Union; the Maldives; Egypt; Bangladesh; Indonesia; Malaysia; Tanzania,; Chile; Colombia; India; the Plurinational State of Bolivia; China; Brazil; Pakistan; Hong Kong, China; Sri Lanka; Australia; Nigeria; the United Kingdom; Norway; Nepal; Switzerland; Chad,; Japan; Singapore; Russian Federation; Türkiye; Namibia; the United States; Peru; and the Bolivarian Republic of Venezuela took the floor.
67. The Chair thanked the representatives for their interventions and said that in light of the discussion, it was his impression that Members' views on the substance remained relatively unchanged. While he had heard a number of delegations welcoming the efforts of the Director- General, he had also heard some strongly expressed concerns regarding transparency and inclusiveness. Overall, he sensed expectations and hopes among delegations that the current high- level process might result in framing a platform on which the Membership at large may be able to build a consensus-based solution.
68. Regarding the procedural way forward, noting the requests from delegations, the Chair proposed to keep these two agenda items open in order to be able to reconvene the Council at short notice.
69. Finally, the Chair urged delegations to remain fully engaged with a sense of urgency and with the objective to find a path forward towards a consensus-based outcome. Transparency and inclusiveness were central pillars of the WTO's modus operandi. All efforts should be made to keep the entire membership as much as possible informed and involved in the deliberation on items on the Council's agenda.
70. The Council took note of the statements made and agreed to keep the agenda items open with a view to resuming the meeting at short notice as appropriate in light of developments.
71. At the reconvened meeting on 6 May 2022, the Chair suggested to once again take up agenda items 12 and 13 together, as had been the case in past meetings. The Chair put on record that, at an informal meeting of the Council on 3 May 2022, he had shared with Members a briefing that he had received from the Director-General on the outcome of informal discussions among a number of Ministers that had been held without prejudice to these Members' respective positions. On the same day, he had received a communication from the Director-General, containing the text of this outcome, which was subsequently circulated to Members in document .
72. He recalled that, at an informal session immediately preceding this formal meeting, he had shared with Members his impressions from the bilateral consultations he had held, and a number of delegations had provided first informal reactions to the circulation of document . These interventions had indicated that the majority of delegations needed more time to consult on the document before they would be ready to substantively engage on the text. He indicated that he would consult further with Members after the General Council meeting on 9-10 May, before setting out a process for substantive discussions going forward.
73. The Chair then recalled that, as indicated in his communication dated 28 April 2022, in its last report to the General Council on 23-24 February 2022, the Council had concluded that it would "report back to the General Council as stipulated in Article IX:3 of the Marrakesh Agreement". In line with previous practice, he had circulated draft language for a factual and neutral reflection of the state of play, closely based on previous reports, on 3 May 2022 in document with an invitation for Members to provide comments. An agenda item for this status report had also been placed on the agenda of the General Council meeting scheduled for 9-10 May in the usual fashion. Since no comments had been received on the draft language, delegations had been informed that the Chair would propose the text as circulated for adoption.
74. As the proposed language closely mirrored previous reports, which were by now well known by all delegations, the Chair said he would simply propose that the Council formally adopt the text for the oral status report as circulated in document as a factual reflection of discussions on the TRIPS Waiver request.
75. The Council so agreed.
76. The Chair thanked delegations for their cooperation and said he would deliver this report to the General Council, on 9-10 May, as agreed. He recalled that, given the upcoming opportunities for delegations to place formal statements on the record at the General Council, he had not intended to open the floor under this agenda item, and he thanked delegations for their cooperation in this regard.
77. The representatives of China; Indonesia; Ukraine; Nigeria and the Russian Federation requested their statements from the preceding informal meeting be included in the record of the formal meeting.
78. The Chair then recalled that when the Council agreed to the 2022 meeting dates last October, the summer meeting of the TRIPS Council had been set for 8-9 June 2022. Given that the 12th Ministerial Conference had recently been rescheduled for 12-15 June, and in light of the circulation of the draft outcome text, he suggested moving the date of the Council's summer meeting to 6- 7 July 2022 to allow the Council and delegations to focus on preparations for MC12.
79. The Council so agreed.
80. In closing, the Chair encouraged delegations to prepare for the upcoming discussions on the draft outcome text with a constructive and pragmatic attitude. The fact that a number of active delegations with divergent views had invested months of hard work to come together around a common text meant that Members may now have a realistic chance to reach an agreed outcome on this long-standing issue. It would not be easy, and it was in the nature of multilateral consensus that compromises would be required on all sides. But an agreement by all Members on a pragmatic and practical outcome on the role of IP in the pandemic would send a strong signal that – despite their differences – the WTO community could come together and highlight how the multilateral rules can help address this and future crises.
81. At the reconvened meeting on 1 June 2022, the Chair indicated that the sole purpose of the meeting related to the modalities for adopting the TRIPS Council's oral status report to the General Council meeting on 7 June. He said that he would circulate the draft text for that report to delegations today and proposed that the Council adopt the text of its oral status report ad referendum. This would mean that, unless any delegation raised an objection to the draft text of the oral status report by the specified deadline, the report would be deemed to have been adopted. This would help the Council avoid holding another formal meeting before the General Council meeting the following week.
82. The Council so agreed.
IP/C/M/104/Add.1, IP/C/M/104/Rev.1, IP/C/M104