In November 2020 member states of the European Union, the United Kingdom, the United States, and others blocked an appeal for waiver of certain provisions of the Agreement on Trade-Related Aspects of Intellectual Property Rights(TRIPS Agreement). The proposal for the waiver had been tabled at the World Trade Organization’s (WTO) TRIPS Council by India and South Africa to allow developing countries to have quicker access to the Covid-19 vaccine and save lives.

TRIPS AGREEMENT

The TRIPS Agreement is an international legal agreement between WTO member states, which allows for a more extensive protection of intellectual property (IP). A proposal brought by India and South Africa, supported mostly by low and middle-income countries, sought to waive article 31 and article 31bis of the TRIPS Agreement, which make it difficult for these countries to obtain the vaccine. The aim is to allow developing countries to have quicker and more affordable access to the Covid-19 vaccine. 

Article 31 of the TRIPS Agreement makes the import and export of pharmaceutical products lengthy and expensive. For instance, in 2007 Rwanda sought to use this legal regime to import AIDS medication from Canada, but due to thevery bureaucratic process the supply took more than a year to reach Rwanda. In a statement before the TRIPS Council, South Africa requested “a waiver to be granted to all WTO Members so that they do not have to implement, apply or enforce certain obligations related to Covid-19 products and technologies”. The proposal made by South Africa did not seek to make substantive changes to the Agreement, but only to suspend operation of article 31 and article 31bis temporarily, specifically in relation to Covid-19 products. The suspension would also only apply for a set period, until there is widespread vaccination available globally. 

This proposal is in line with article 8(1) of the TRIPS Agreement, which states that countries may adopt necessary measures to protect public health. Additionally, it is supported by the Doha Declaration on TRIPS Agreement and Public Health which affirms that "the TRIPS Agreement does not and should not prevent Members from taking measures to protect public health". 

INTELLECTUAL PROPERTY AS BARRIER TO ACCESSING ESSENTIAL MEDICINE

High-income countries have dismissed the argument that IP is a barrier to access medicines, and instead argue that equitable access can be achieved through voluntary licensing, technology transfer arrangements, and the donor-funded COVAX. However, the Doha Declaration is an indicator that this approach has failed before as it was created in response to the obstacles faced by developing countries when seeking to implement measures to promote access to affordable medicines.

COVAX Advance Market Commitment (COVAX) is a donor-funded vehicle meant to ensure equitable access to the Covid-19 vaccine for low- and middle-income countries by raising two billion US dollars of funding. The Global Alliance for Vaccines and Immunizations (GAVI) is an international organisation created to improve access to new and underused vaccines for people living in the world's poorest countries. According to GAVI, despite the COVAX initiative, “it is likely that the 92 ODA-eligible countries accessing vaccines through COVAX may also be required to share some of the costs of Covid-19 vaccines”. 

South Africa, one of the countries in Africa worst hit by the virus, had failed to make a deposit to secure vaccines in December 2020. The country needed to make a $22 million deposit through COVAX to secure a vaccine supply for about 10 percent of its total population of roughly 60 million people. This is an illustration of how COVAX is insufficient for ensuring timely and equitable access to the Covid-19 vaccine.

The European Union rejected the proposal by India and South Africa through its spokesperson stating that “there is no evidence that IP rights in any way hamper access to Covid-19-related medicines and technologies”. Despite a group of UK MPs urging the UK government to back the suspension of Covid-19 vaccine patents so as to protect people in poorer countries, the UK also rejected the proposal by India and South Africa. According to the UK they “have not identified clear ways in which IP has acted as a barrier to accessing vaccines, treatments, or technologies in the global response to Covid-19”. 

The blocking of access to vaccines by high-income countries under the guise of intellectual property protection has become a repetitive cycle. At the height of the HIV/AIDS pandemic, the price for antiretroviral medication (ARV) was simply too high for low- and middle-income countries to afford. As a result, while the prevalence of HIV/AIDS plunged in high-income countries, infected people in developing countries were left to die.

Similarly, in 2004, when the avian influenza H5N1 re-emerged, wealthy countries had priority access to vaccines over developing countries. The same was the case five years later when the pandemic flu H1N1 emerged. Once again wealthy countries placed large pre-orders of the vaccine, buying almost all doses that could possibly be manufactured. Many of these high-income countries promised to donate vaccines. However, most of them reneged on their promises and moved to secure their own countries’ supplies. With Covid-19, history is repeating itself.

High-income countries whose populations account for just 14 percent of the world population have left only 40 percentof the Covid-19 vaccine doses to be shared among low- and middle-income countries comprising more than 85 percent of the world’s population. The EU together with additional wealthier nations have already pre-booked more than 51 percent of the global supply capacity of the potential future Covid-19 vaccines, which leaves a limited share for developing and least-developed countries. For instance, New Zealand, with a population of five million, has ordered 15 million doses of the Covid-19 vaccine and has “promised” to donate some to poorer countries in the Pacific region. The EU, which has a population of roughly 448 million, has secured 1.3 billion vaccines and similarly, it is considering donating five percent of its Covid-19 vaccines to developing countries. 

WEIGHING UP PROPERTY RIGHTS AGAINST OTHER HUMAN RIGHTS

The TRIPS Agreement is a legal regime that protects the right to property. The right to property is also recognized under international human rights law. For instance, it is enshrined under article 17 of the Universal Declaration of Human Rights and article 1 of the Protocol to the European Court of Human Rights. Additionally, this right is enshrined under article 17(2) of the EU Charter of Fundamental Rights, which explicitly states that IP rights shall be protected. 

However, certain rights, including property rights, may be limited in the interest of public health. Therefore, the argument made by high income countries that waiving certain provisions of the TRIPS Agreement would be in contravention of IP rights is inaccurate, as this is a limitation which is provided under international human rights law in the interest of public health.    

The right to life is enshrined under article 6 of the International Covenant on Civil and Political Rights (ICCPR). A waiver could have allowed developing countries to access the Covid-19 vaccine quicker and save lives. Therefore, by blocking the waiver which could save lives, state parties are in contravention of this provision, as such actions could be a death sentence to people in developing countries. 

The right to health is further recognised under article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR). The ICESCR places an obligation on state parties to protect the right to health. Thus, high income countries by blocking the waiver proposal, are contravening their obligations under article 12(2)(d) which obligate them to create conditions which would assure medical service and attention in the event of sickness.

Non-discrimination and equality rights further require states to recognize and provide for the differences and specific needs of developing countries. Such countries generally face particular health challenges, such as higher mortality rates or vulnerability to specific diseases. The obligation to ensure non-discrimination requires specific health standards to be applied to developing countries and, in the current circumstances, especially for those severely impacted by Covid-19.

In a nutshell, by blocking the proposal at the WTO, high-income countries are not only violating the right to health but also the right to life in order to enable pharmaceutical companies to profit from vaccines that have been developed overwhelmingly with public funds. This is shocking for countries that often act as custodians for human rights. It is disingenuous for high income countries to simply  promise to donate vaccines to low-income countries when there is a mechanism through the WTO that would allow for a more equitable access to the Covid-19 vaccine.