India & South Africa’s Waiver Proposal to the WTO: A Battle between Rich & Poor Countries
Recently, India and South Africa, who both are World Trade Organization (WTO) members, have submitted a joint proposal to WTO regarding waiver from certain provisions of the Trade-Related Aspect of Intellectual Property Rights (TRIPS) agreement for the prevention, containment, and treatment of COVID-19. This move has been called by the respective nations in order to waive the intellectual property rights on Covid related countermeasures so that such Intellectual Property rights (IP Rights) do not create barriers to the timely access to affordable medical products including vaccines and medicines or to scaling-up of research, development, manufacturing, and supply of medical products essential to combat COVID-19.
TRIPS agreement formally deals with the maintenance of the standard of the IP rights and sets provision for its enforcement and dispute redressal. Besides this, the agreement also provides for the basic principles to ensure that procedural difficulties in acquiring or maintaining IPRs do not nullify the substantive benefits that should flow from the Agreement.1 As the discussions have already commenced by the TRIPS Council in regard to the proposal submitted, media houses have claimed that the WTO members are divided over such proposal.2 Due to this, there has been no consensus yet on the issue. The procedure of getting a consensus on an issue under WTO is really difficult as all the members have their say in it, and then taking consent of all, then only a certain decision is taken. Although, progress has been made in the proposal, the consensus is still a failure due to developed countries objecting to such a move for a waiver.
A Rationale Proposal
Precisely, the proposal deals with the demand for a waiver from the implementation, application, and enforcement of Sections 1, 4, 5, and 7 of Part II of the TRIPS Agreement. Section 1of Part II deals with copyright and related rights, Section 4 deals with Industrial Design, and Section 5 and 7 deals with Patents and Protection of undisclosed information, respectively. Thus, the proposing countries believe that through waiving these provisions, the problem of intellectual property rights hindering or potentially hindering timely provisioning of affordable medical products to the patients will be resolved and the tools required to fight the pandemic will be easily accessible so that the aim of rapid access to affordable medical products is properly upheld.
The rationale behind the proposal is that the plight of the pandemic will make the poor countries suffer the most if a unified solution is not searched for. In the proposal, the proposing counties have highlighted the point that due to a swift increase in the global demand, many countries are facing medical shortages resulting in constraining the ability to effectively respond to the outbreak thereby putting the lives of health and other essential workers at risk and led to much avoidable death. Thus the plight may aggravate if the new diagnostics, therapeutics, and vaccines might not be made available promptly in sufficient quantities at affordable prices for consumption purposes.
In the proposal, the countries have also cited that the complex issue of countermeasure unavailability has been indirectly recognized by other nations as well as they have made urgent legal amendments to their national laws in order to expedite the process of attaining the suitable accessibility. However, the proposal has further highlighted that the developing countries while making such amendments to overcome the barrier may face institutional and legal difficulties and the process of procuring may become tardy. Therefore, the countries believe that such a global move, if taken, would help the people of poor countries to get equal treatment during the pandemic and it will ensure that the pillars of vaccine nationalism may not build on the coffins of poverty-ridden countries. Kenya, Tanzania, Bangladesh, Pakistan, Sri Lanka, Indonesia, Argentina, Mauritius, and Mozambique are some of the countries that have supported the proposal and have given their assent.3
Developed Countries Blocking The Way
Nonetheless, it was anticipated that the proposal submitted by these countries would not have a consenting entry and an approving exit. Richer and developed countries are vehemently protesting against the proposal as they believe that IP rights would not violate or become a hurdle in providing equitable and timely access to medical countermeasures to any country. Their claim is that suspending IP rights is unnecessary and even temporary suspension will undermine the collaborative effort to fight the pandemic which is currently being projected.4
The developed countries rather believe that IP rights through its incentivizing role in research and development have motivated the global efforts to prepare the vaccine and other medical products in an accelerated manner which would not have been possible with its waiver.
Moreover, the developed countries believe that there are several alternatives available in state-specific laws like compulsory licensing, government procurement, etc., and thus state-specific laws can act as a better alternative in which no unified interest in been affected. Also on the other hand, pharmaceutical companies will not be flexible in accepting the waiver of IP rights as IP rights is one of the strongest reasons for the pharmaceuticals to dedicatedly work on their R&D. Therefore, taking a universal decision on the said proposal is currently an Herculean Task because the proposal has now taken a combatting shape in which the mutual-interest of developing countries are at one side and the self-interest of developed countries on the other, and hence drawing an equilibrium is slightly utopian.
Indisputably, the unification of global interest is the cornerstone of a utilitarian approach towards any universal catastrophe. Granting and favoring monopoly rights in such disastrous and catastrophic conditions can lead to taking an unjustifiable and counterproductive approach, which may hamper the achieving of a global-responsive solution to it.. The interest of developing countries and developed countries are required to be balanced so that every human being gets access to public goods and vaccines in an organized and systematic order. At present, News resources have stated that developed countries which are 13% in population have already reserved 52% of the potential vaccines5 so as to ensure more than sufficient vaccine availability for their citizens. Such a self-servicing approach may not be in the legitimate scope of human rights. However, till the time proposal is not decided, nations can look, search, and experiment for the next best alternative which shall oblige the humane objective which has been raised by India and South Africa jointly.