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WTO’s IP Waiver for Covid-19 Vaccine Access Faces Several Structural Headwinds

covid19vaccinesThe Covid-19 pandemic is the gravest global disaster of modern times. The recent statement of the Biden administration signaling its intention to support a Covid related Intellectual Property (IP)  waiver was welcomed;  alas, besides being a case of ‘too little too late’, the path towards an equitable and immediate access to IP for development is littered with institutional potholes and faces several headwinds.  The World Trade Organisation’s (WTO) agenda has generally focused on reducing international trade barriers and making it more efficient and predictable for companies to do business abroad. The appointment of Ngozi Okonjo-Iweala of Nigeria, a first from the African continent was seen widely welcomed for its significant on addressing issues facing the developing South. She thus came with a vision of delivering tangible results for people centered development instead of mostly benefiting corporations. This has led to a spirited debate over how the WTO can get Covid-19 vaccines to the people who need them most.

Since the early days of the pandemic, progressive international organisations such Medecins Sans Frontieres (MSF) and Third World Network (TWN) have strongly supported the TRIPS waiver proposal on grounds that it would accelerate efforts by developing countries to collectively fight COVID-19 through creating the requisite capacities for manufacturing the vital PPEs including face masks, therapeutics, and vaccines. They argue correctly that the most practical way to ensure availability of enough vaccines to meet the demand is through scaling up production, and that IP protection acts as a legal barrier to technology transfer and thus prevents dissemination of technology. What is also important to note is that public funding is leading the Covid-19 vaccine research and development and therefore there is no real justification for IP protection for Covid-19 vaccines at the expense of scaled up production.

According to a negotiator at the WTO “We are not seeking a donation and we are not confident about the market-based instruments such as COVAX,” said another participant, suggesting that “the developing countries want to create manufacturing and industrial capacities so as to ensure that we are in a position to fight the current COVID-19 as well as future pandemics.” If is further argued that “In actual fact what we are questioning is the structure of the IP [intellectual property] system and the organizations that depend on the funding”. This is a prescient argument as the stakes at the WTO IP waiver discussions go to the heart of the need for equitable development that has echoes of the arguments many G77 nations made during the TRIPS agreement exceptions around the HIV pandemic in the early 2000s. Twenty years later, the fundamental corporate monopoly model of big pharmaceutical companies - Big Pharma - is not only intact but on profit driven steroids of Covid-19 vaccine nationalism and hoarding, while denying developing nations any form of legitimate technology transfer in a global public health pandemic.

Structural headwinds and barriers facing the Developing South

Generally, good moral policy intentions often face the harsh reality of institutional power in international relations as the developing South faces several headwinds, some of which are listed below.

WTO and World Bank adherence to neoliberalism and corporate protectionism: In the week that President Biden made the announcement and the G7 Summit commitment, the World Bank ‘s president Malpass immediately poured cold water by stating the World Bank will not support the IP waiver as it would crowd out innovation and R&D investment of the pharmaceutical sector. However, what big pharma won’t tell the public is that none of the countries supporting the international IP system spoke about the tens of billions of dollars of public funds provided to pharmaceutical companies such as Astra, Sanofi, Moderna, and J&J, that continue to sell medicines and vaccines at unaffordable prices, which are beyond the reach of people in the developing countries. By contrast emerging powers such as China and Russia have made available Covid-19 vaccines to developing nations within a public good framework

Gates Foundation’s close relations with pharma value chains impacts on policy sovereignty: Another powerful and influential actor in global public health is the Gates Foundation. With billions at its disposal the Gates foundation’s financial power had the effect of dominating public health discourses in poor nations and Least Developed Countries (LDCs’). In a critical review of the Gates Foundation, public health journalists Malpani, Baker and Yanni observed that while couched in the narrative of ‘charity and philanthropy’, the Gates Foundation’s approach in capturing the global public health discourse is a cause for concern for several reasons.  In a critical review of the Gates Foundation, the public health journalists observed that during the pandemic, the Gates Foundation has spent or committed to spending hundreds of millions of dollars on the development and procurement of COVID-19 medical technologies, partnering with both global health agencies and pharmaceutical corporations to accelerate the development and deployment of technologies.

The Gates Foundation is the second largest funder of the World Health Organization, the global health agency of UN member states, which sets standards and issues public recommendations working on an annual budget that is just a fraction of Gates’ own. The Gates Foundation also is a leading funder of, as well as a board member on, most of the world’s other leading global health agencies and public-private partnerships such as the Gavi Vaccine Alliance, The Global Fund to fight HIV/AIDS, Tuberculosis and Malaria, and Unitaid. This provides the Gates Foundation with decision-making power on the most salient issues with respect to research, development and delivery of health care systems in developing countries.

According to the authors, this provides the Gates Foundation with countervailing power in “prioritizing pharma monopolies of technology and intellectual property (IP) and secretive, technocratic, and top-down approaches that mostly exclude Low and Middle Income Countries’ (LMICs) from decision making as well as avoiding public scrutiny. And in terms of health products, they trap most countries into a system that primarily benefits pharmaceutical corporations and high-income country governments, which can subsidise these corporations with both billions of dollars in upfront subsidies and paying high prices for treatments and vaccines, and that these practices and trends will likely endure even after the pandemic recedes.

They further contend that:

“Examples of this Gates-Pharma patent complex landscape comes up when on September 28 2020, the Gates Foundation signed a new agreement with two diagnostic manufacturers to supply just 20% of their new diagnostic tests to 133 Low and Middle Income Countries (LMICs). This announcement raises many questions. Why only 20%? Which 133 countries are eligible? The Gates Foundation signed a similar, secretive agreement with Eli Lilly for the provision of its monoclonal antibody candidate (to treat COVID 19) on behalf of LMICs”.

The authors correctly contend this power of the Gates foundation strengthens Northern IP power – and their industries over the health and procurement systems of developing nations, locking them into certain corporations’ Vaccines for instance, and by default, also undermines the role of the WHO.

Differing, contradictory  positions of the Developing South:

 The high point of developing world solidarity was the G77 group during the WTO Doha Development phase in the early 2000s.  Most of the leading developing world nations such as China, India, Brazil, South Africa, Mexico, and others cohered around a global moral and developmental agenda, especially agriculture, TRIPS and trade barrier matters.  Sadly the G77 has largely dissipated and divided with various developing nations such as Chile and Ecuador being incorporated into powerful Northern blocs and trapped into corporatist Bilateral Investment Treaties (BITs). Ironically, Brazil, which started the global movement against patents in the late 1990s under the leadership of former Brazilian foreign minister Celso Amorim, is today supporting the structure of the international patent system that appears to operate on “coercion” and “arm-twisting” developing countries whenever they seek to invoke a compulsory license.

Furthermore the core arguments posed by groups of the developing South is an appeal for WTO members to work together to ensure that intellectual property rights such as patents, industrial designs, copyright and protection of undisclosed information 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. Moreover, the emerging third wave of the disease underscores the importance of finding global solutions that ensure equitable access. Referring “to the findings in several reports about intellectual property rights hindering or potentially hindering timely provisioning of affordable medical products to the patients,” South Africa said “some WTO Members have carried out urgent legal amendments to their national patent laws to expedite the process of issuing compulsory government use licenses, as evidenced by the updated Secretariat report on national measures taken by WTO Members.

The group does have a sobering assessment. In addition, many countries, especially developing countries may face institutional and legal difficulties when using flexibilities available in the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement).

However, while South Africa and India’s position is a brave and welcomed stance, it is essentially a contradictory stance - as political elites and health regulators decisions’ have seen their entire Covid-19 vaccine roll out wholly dependent on global pharmaceuticals. This contradiction seems lost on those who have gone head over heels in prioritizing Big pharma’s market driven roll out- and in the case of South Africa with costly mistakes relating to AstraZeneca and J&J roll outs over the past year, yet our national System of Innovation NSI has not created the envisaged national pharmaceutical company as was planned for by the Department of Science and Technology in 2012 already.

Even being invited to the G7 summit in London is no guarantee that Northern powers and big pharma will yield to the substantive and immediate requirements. Meanwhile, and aside from the current pandemic, the Post-Covid recovery challenges in South Africa and Africa face further structural economic and social headwinds such as the new macro- economic debt crisis in most of Africa, 4IR and the displacement of labour, resource conflicts around oil, gas and water and a myriad of social-economic crises that will require decisive leadership commitment to sustainable and alternative economic development pathways.

What is clear to the developing world, including South Africa, is that a begging bowl mentality approach to the G7 summits in Northern capitals is unlikely to yield any substantial developmental outcomes during - and after the Covid-19 pandemic. Alternative economic and political paradigms are urgently required, as time is running out.

Ashraf Patel is the digital data and economy associate at the IGD and is a graduate on the Masters in Management (MM)   Public Policy and Regulation Management (ICTfrom the Graduate School of Public and Development Management (P&DM), University of Witwatersrand, South Africa. His views do not necessarily reflect those of the IGD

 

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