WTO Member States agreed on waiving patents for Covid-19 vaccines at the WTO Ministerial Conference, which ended on 17 June 2022. Even though the agreement was hailed as a breakthrough, one has to ask the question what exactly has been agreed on, and how to evaluate the result in view of effectively fighting the pandemic globally.
After difficult and lengthy negotiations, the WTO delegations were finally able to agree on the “Geneva Package”, which contains a waiver of certain requirements concerning compulsory licensing for Covid-19 vaccines.
In October 2020, India and South Africa had proposed to waive the trade-related aspects of intellectual property rights for Covid-19 relevant medical products such as medicines, diagnostics and vaccines to combat the pandemic. Whilst the western world has the resources, technologies as well as the knowledge for their production, countries of the global South are lacking all of these. Solidarity and global solutions are still needed due to the worldwide-shared risk of coronavirus mutations and in view of the serious health, social and economic crises resulting from the pandemic.
Affirmation of the status quo
However, many industrial countries – including the European Union – refused to overturn the rules of the TRIPS Agreement in order to boost the manufacturing of Covid-19 medical products, therefore, failing to provide support for developing countries. The struggle for a compromise at international level has been going on for months. However, the now achieved result at the WTO Conference is very disappointing: the only thing left of the demanded far-reaching waiver of intellectual property rights in connection with Covid-19 medical products are patents on vaccines. The agreement just affirms those options, countries can already invoke. Hence, a WTO member country is able to override the patent protection on vaccines if a national state of emergency or other serious circumstances exist. Due to the huge bureaucratic obstacles, the process, which has been provided for about 20 years earlier, has only been used successfully once. This concerned the export of a HIV drug from Canada to Rwanda.
Apart from that, developing countries that already have capacities to produce Covid-19 vaccines shall make a binding commitment not to apply this regulation. This aims in particular at China, which produces Covid-19 vaccines and has the necessary technologies at its disposal. According to insider reports, the US and China have been negotiating until the last minute on a wording acceptable to both sides. Developing countries are now able to make use of this agreement for a period of five years.
Lost time for fighting the pandemic on a global scale
In order to not completely abandon hope regarding a comprehensive waiver for urgently needed Covid-19 medical products, it has been agreed that the WTO Member States would decide on an extension of the decision in six months at the latest. In doing so, member states waste valuable time regarding the global fight against the pandemic, which already cost countless lives. Moreover, the prospect of success against the background of opposing interests between industry and developing countries is already low.
The current WTO Agreement regarding TRIPS is miles away from the intentions of TRIPS waiver supporters. Restricting the decision to vaccines and existing exemptions cannot be justified from the perspective of fighting the pandemic. The fact that a text was passed at all can be seen as a symbol not to let the WTO drift even further into complete insignificance. The pressure – in particular by WTO Director General Ngozi Okonjo-Iweala – to come to an agreement was quite strong, after all, it was about nothing less than presenting the WTO as a functioning multinational organ after years of standstill. However, sham solutions will not increase the WTO’s significance, nor will they eliminate the glaring inequality in access to life-saving Covid-19 medical devices.