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In advance of our Vaccine Equity and International Economic Law event next week (register here: https://miami.zoom.us/webinar/register/WN_mBSkWfKsSFW7Ez8ldo36xQ), I am compiling some resources focused specifically on the proposed #TRIPS waiver.
A thread with links. 1/x
A thread with links. 1/x
Proposed text of the waiver, submitted to the TRIPS Council in October 2020, is here. 2/x
https://docs.wto.org/dol2fe/Pages/SS/directdoc.aspx?filename=q:/IP/C/W669.pdf&Open=True
https://docs.wto.org/dol2fe/Pages/SS/directdoc.aspx?filename=q:/IP/C/W669.pdf&Open=True
As an example of opposition to the proposal, here’s a response from Norway back in October 2020. It heavily emphasizes the existing flexibilities in the TRIPS Agreement. 3/x https://www.norway.no/en/missions/wto-un/nig/statements/other-issues/council-for-trips/trips1610/
Regarding those flexibilities, here is an excellent piece by Faith Tigere & @Kholofelo_M pointing to the practical challenges in implementing them. 4/x https://www.tradeexperettes.org/blog/articles/compulsory-licensing-the-key-to-accessing-the-future-covid-19-vaccine-for-africa
A useful post by @Dyebo also speaks to the gap between TRIPS’s legal flexibilities and the practical obstacles. 5/x https://dalishabalala.wordpress.com/2021/02/23/can-countries-use-trips-article-31-compulsory-licensing-to-address-covid-vaccine-shortages/
This thread by @VidigalGeraldo also underscores the practical challenges of compulsory licensing. 6/x https://twitter.com/vidigalgeraldo/status/1390048092729323522
Aside from compulsory licensing, TRIPS Art. 73 creates an exception for security measures taken in times of “emergency in international relations." This is probably not the flexibility that waiver opponents have in mind, but it’s there. 7/x
https://www.wto.org/english/res_e/publications_e/ai17_e/trips_art73_jur.pdf
https://www.wto.org/english/res_e/publications_e/ai17_e/trips_art73_jur.pdf
Professor Frederick Abbott has argued (correctly, in my view) that the Covid-19 pandemic meets the requirements of Article 73, and that states could invoke the exception in order to ensure access to vaccines and other technology. 8/x
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3682260
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3682260
What I’m coming to understand is that the waiver is an option that’s between the problematic (compulsory licenses) and the dramatic (security). It’s enabled by Article IX of the WTO Agreement. 9/x
https://www.wto.org/english/res_e/publications_e/ai17_e/wto_agree_art9_oth.pdf
https://www.wto.org/english/res_e/publications_e/ai17_e/wto_agree_art9_oth.pdf
There has been a flurry of writing about the waiver, both supportive and in opposition. For a strong statement in support, see this piece in @washingtonpost by @MadhaviSunder & @MMKavanagh. 10/x https://www.washingtonpost.com/opinions/2021/03/10/dont-let-intellectual-property-rights-get-way-global-vaccination/
Opponents argue that a waiver will do little good b/c capacity, not IP, is the obstacle. There is speculation that a waiver may “backfire.” A piece that nonetheless acknowledges the need to exert activist pressure on Big Pharma is here, by @rsilv_dc. 11/x https://www.washingtonpost.com/outlook/2021/03/15/vaccine-coronavirus-patents-waive-global-equity/
An alternative argument posits that TRIPS protection is the sine qua non of innovation. There’s also an almost reactionary concern for the legitimacy of the @WTO. See eg this @CatoTrade piece by Jim Bacchus, which gives the game away in the subhed. 12/x https://www.cato.org/free-trade-bulletin/unnecessary-proposal-wto-waiver-intellectual-property-rights-covid-19-vaccines#conclusion
. @AmbassadorTai @USTradeRep has shifted the terrain, announcing “support for waiving intellectual property protections for COVID-19 vaccines.” This is not full support for the India/South Africa proposal or for any precise text. But it’s a big step. 13/x
https://ustr.gov/about-us/policy-offices/press-office/press-releases/2021/may/statement-ambassador-katherine-tai-covid-19-trips-waiver
https://ustr.gov/about-us/policy-offices/press-office/press-releases/2021/may/statement-ambassador-katherine-tai-covid-19-trips-waiver
I’m sure by now you’ve also seen the statement by @vonderleyen that the European commission is “ready to discuss” a waiver, as well as Angela Merkel’s statement registering opposition. 14/x https://www.theguardian.com/world/2021/may/06/eu-ready-to-discuss-waiver-on-covid-vaccine-patents
It’s still not entirely clear what the US envisions from all of this. As far as what could come next, here’s a useful thread by @DmitryOpines. 15/x https://twitter.com/dmitryopines/status/1390035964882571265
Regardless of which route is taken, as @alanbeattie and @howserob suggest, this suggests a diplomatic shift inside the @wto, with the United States taking the opportunity to find coalitions and exercise leadership in the organization. 16/x https://ielp.worldtradelaw.net/2021/05/triping-the-light-fantastic-fathoming-the-biden-administrations-support-for-a-vaccine-waiver-at-the-.html
Here’s @alanbeattie in @FinancialTimes, noting that the immediate effect of US support for some kind of waiver is that it provides political cover to states seeking to exercise TRIPS flexibilities to their maximum extent. 17/x https://www.ft.com/content/0930fe14-5187-45dc-b573-4f4098211bf4
In the long run, talk of a waiver may end up with a more nuanced, modified compulsory licensing regime, as @dyebo suggests. Here’s what that might look like. 18/x https://dalishabalala.wordpress.com/2021/04/15/a-compulsory-license-option-for-the-covid19-trips-waiver-proposal/
As we can see, the @USTradeRep announcement from yesterday is just part of an iterative political process, and it’s not clear yet where we’ll end up. It’s also a relatively moderate solution all things considered, as @MMKavanagh points out. 19/x https://twitter.com/mmkavanagh/status/1390280527815585795
None of this has stopped some pretty extreme reactions. @SoumayaKeynes in @TheEconomist described the US as “tear[ing] up the rulebook.” 20/x
(I don’t pay for the Economist & couldn’t read past the first 2 paragraphs. If anyone can offer me an IP waiver, I’ll take it.) https://twitter.com/soumayakeynes/status/1390358319794171906
(I don’t pay for the Economist & couldn’t read past the first 2 paragraphs. If anyone can offer me an IP waiver, I’ll take it.) https://twitter.com/soumayakeynes/status/1390358319794171906
Moderna CEO Stéphane Bancel, meanwhile, told us all to go back to sleep, saying there would be no impact because of the general lack of capacity and know-how to make mRNA vaccines. That likely has something to do with the company’s share prices. 21/x https://www.ft.com/content/607bf143-3360-4543-8cb4-b1a1c42fc41f
There’s obviously a dissonance here—either the waiver won’t be effective, in which case why worry, or it will be effective, which would explain the position of industry lobbyists. @JosephEStiglitz & @WallachLori go there in @prosyn today. 22/x https://www.project-syndicate.org/onpoint/big-pharma-blocking-wto-waiver-to-produce-more-covid-vaccines-by-joseph-e-stiglitz-and-lori-wallach-2021-05
All of this noise only underscores the fact that we still don’t have a clear vision where all this is headed. What @wto obligations, if any, will be waived or modified, and how? And how will that be paired with technology transfer for the benefit of developing countries? 23/x
As @dyebo points out, it’s incredibly frustrating that we have to ask these questions this late in the game. Still, here we are, predictably perhaps. And the question now is how we move forward. /END https://twitter.com/dyebo/status/1390401758816526339
