India-South Africa Agitates at WTO for TRIPS Agenda of Covid Waiver of IPRs

WTO members agreed to continue their discussions on a common intellectual property (IP) response to COVID-19 amid the ongoing high-level political dialogue aimed at finding a consensus-based outcome. At a formal meeting of the Council for Trade-Related Aspects of Intellectual Property Rights (TRIPS) on 16 December, members reported on the bilateral meetings and small group consultations held following the postponement of the 12th WTO Ministerial Conference and reiterated their willingness and intention to intensify their engagement with each other.

Members agreed to keep the agenda of the TRIPS Council open on two proposals on the table — the proposal led by India and South Africa (IP/C/W/669/Rev.1) and supported by a total of 65 co-sponsors, requesting a waiver from certain provisions of the TRIPS Agreement for the prevention, containment and treatment of COVID-19, and the proposal by the European Union (IP/C/W/681) for a draft General Council declaration on the TRIPS Agreement and Public Health in the circumstances of a pandemic.

The idea of keeping these agenda items open is to be able to re-convene the TRIPS Council at short notice if and when there are indications that members might be closer to finding a landing zone. Members were encouraged by the reports on virtual meetings held last week at ministerial level between South Africa, India, the United States and the European Union — facilitated by WTO Director-General Ngozi Okonjo-Iweala — to discuss a way forward and find common ground.

Members welcomed this high-level dialogue and called for a transparent process involving the whole membership. Participants in the high-level engagement made clear that discussions are taking place with the goal of achieving a multilateral, consensus-based outcome.

Against this background, the Chair of the TRIPS Council, Ambassador Dagfinn Sørli of Norway, suggested as the best course of action for the immediate future to let these ongoing high-level engagements “continue and mature.” If a common approach can be developed among these members, “this could hopefully contribute to unlocking the situation in the Council and allow all members to take a step forward towards developing a consensus outcome,” he said. “A practical, tangible WTO response to the pandemic is needed …. If members focus on that, I also believe it is within reach,” he added.

Ambassador Sørli also reported on the consultations held over the past two weeks with delegations, where fundamental differences on questions such as whether a waiver is the appropriate and most effective way to address the shortage and inequitable distribution of vaccines and other COVID-19-related products were reiterated. Differences were also expressed with regards to the commencement of text-based negotiations based on the revised TRIPS waiver proposal, which Argentina recently joined as the latest co-sponsor.

Co-sponsors stressed the need to urgently initiate text-based negotiations, but several delegations saw little promise in any textual engagement as long as fundamental disagreements persist. Ambassador Sørli recalled how engagement had been attempted by projecting the revised waiver text on screen during small-group consultations in June. However, engagement on it had simply not been possible among delegations due to the differences on substance and a certain lack of trust, he said. He noted that these obstacles still remain in place to engage in text-based discussions despite some encouraging signs along the way, as convergence on key issues remains elusive.

While members give more time to the ongoing high-level engagement in order to provide new impetus to the work of the TRIPS Council, the Chair called on all delegations — whether involved in the on-going political process or not — “to remain fully engaged with a sense of urgency, and with the objective of finding a pragmatic consensus-based outcome on these issues.”

“A practical, tangible WTO response to the pandemic is needed now more than ever and it is important that the WTO can reach agreement on meaningful responses to these challenges,” he concluded.