MSF: WTO vaccine rights waiver sets a ‘nasty precedent’

In the small hours of 17 June, 2022, the World Trade Organization (WTO) announced that its member states had reached a consensus on the much-talked about waiver on the intellectual property rights on Covid-19 vaccines.

WTO director-general Ngozi Okonjo-Iweala said that the deal made to waive the Trade-Related Aspects of Intellectual Property Rights (TRIPS) agreement for vaccine patents as well as other agreements reached during the WTO Ministerial Conference showed that “the WTO is, in fact, capable of responding to the emergencies of our time”.

Despite the applause, claims of consensus and shows of solidarity, a large share of stakeholders including some developing countries and NGOs in the “access to medicines” realm are not happy with the agreement concluded. Their main opposition is that the final deal is a watered down version of the original proposal by India and South Africa, which also called for IP waivers on Covid-19 therapeutics and diagnostics.

During the conference, over 150 civil society organisations signed a letter urging ministers to not accept the TRIPS waiver text that was being negotiated. Médecins Sans Frontières (MSF) is one of the organisations that has vehemently opposed the current text of the agreement. Dr Yuanqiong Hu, a senior legal and policy adviser with MSF’s Access Campaign, spoke to Geneva Solutions about the trade agreement and its potential aftermath.

GS News: What does the waiver agreement, as reached at the WTO, mean on the ground? What could be its consequences, especially as Covid-19 cases are on the ascend now?

Yuanqiong Hu: We are very disappointed with this agreement. The original idea was to give governments additional legal options to quickly waive exclusive [intellectual property] protection. The current decision doesn't do that. There will not be a substantial change in the behaviour of businesses now, despite the rising number of cases.

What it [the current agreement] could potentially do is if countries decide to use this mechanism, they have this exception on compulsory licensing procedure. This could give them an easier option to export the vaccines they produce by overcoming some of the patent barriers on it. The final agreement allows only this much. In order to make it work, the countries need to produce those vaccines in the first place and then use the exceptions to export. However, there are other limitations to this.

Could you please elaborate on the problems you see in this deal?

Two major shortcomings of this agreement is that this agreement has an eligibility criteria language in the footnote. It says that developing countries that have the manufacturing capacity to produce vaccines are encouraged not to use this decision. This is very strange. In reality, this kind of language could have a chilling effect to discourage countries from actually using the exception.

The second problem with the agreement is that it introduces something called “anti-diversion requirement” in its text. It means that the eligible developing countries should make efforts not to re-export vaccines that they have received. This will impact situations in which countries have more doses than they need and would want to export it to other countries that are in need. This discourages countries from sharing [vaccines] with others.

From a legal perspective, this kind of requirement is even stricter than what was there before the pandemic. This is quite counterproductive. Even if you argue that it is not a hard obligation, it appears in an international agreement!

Following the ministerial conference, a few voices are calling for a termination of the TRIPS agreement for various reasons, including a change in world order since it was agreed on and the fact that it is obstructing health equity goals in low and middle-income countries. What are your thoughts on this demand?

While we don't have a comment on the demand to terminate TRIPS, we do feel that the process of decision-making needs to be closely examined. The process at such meetings is really problematic. It goes against nearly every single principle of good governance and decision-making in international fora. Of course, negotiations happen in challenging situations but we don't see a reason to justify why some countries are in [the negotiations] and why some countries are out and why some countries are forced to accept something they don't like and why some countries make decisions for others by saying “I know what's best for you”.

This is also the time for countries and stakeholders who care about access to medicines to realise that it is not sufficient to rely on the current mechanisms. It doesn't serve the purpose of prioritising access to medicines. It is imperative for profit-driven, market-driven needs to be rethought and reconsidered so that alternative mechanisms can be put in place.

We also think that this is an opportunity for developing countries, particularly those who are most affected by this inequity, to think about national actions, ie., to use what they can use now [before the negotiations end in six months] that's allowed as per international law, including TRIPS. There is flexibility now in these laws and these countries should have the courage to use it now without waiting for this system to change.

Has the agreement reached set a dangerous precedent for years to come?

We think this is a very nasty precedent on the process and on the content. From a public health perspective, this agreement simply doesn't make sense. It doesn't make sense to introduce stricter requirements of asking countries to not re-export the vaccines, when we actually need them to work together in solidarity because it is a global health challenge facing everybody. Why couldn't any decision from the conference encourage collaboration?

The conference, further, spoke only about the production and supply of vaccines whereas we are facing the immediate challenge of access to therapeutics, many of which are related to intellectual property. For medical practitioners and health workers, all tools (vaccines, drugs, diagnostic tools, etc.) are important, particularly now since the cases are increasing. The virus is relatively new and is still mutating. It's not over. And yet, the members made a choice to not allow immediate negotiation on therapeutics, diagnostics and other tools. Yes, the consensus was to discuss them in six months, but why not now? If this agreement is copied and pasted for the future, then it is going to be problematic.