The Need to Expedite the Petition over TRIPS Waiver at WTO: A 'Samudra Manthan' Moment for India

Updated: May 26

Sathyajith MS,

Junior Research Analyst,

Internationalism Research.

It is reported that the members failed to reach a consensus Council on Trade-Related Aspects of Intellectual Property Rights (TRIPS) on 10th December over a petition co-sponsored by India and South Africa to provide certain waivers from TRIPS Agreement regarding manufacture and distribution of Covid-19 vaccines.

The petition states "In these exceptional circumstances, we request that the Council for TRIPS recommends, as early as possible, to the General Council a waiver from the implementation, application and enforcement of Sections 1, 4, 5, and 7 of Part II of the TRIPS Agreement in relation to prevention, containment or treatment of COVID-19". It is reported that countries like the United States of America, Canada, Switzerland inter alia have opposed the petition by asserting that it would undermine the collaborative efforts of countries in developing the vaccine. At a broader level, it can be stated that there are two blocs, namely- the one comprising developed countries and the other comprising developing countries. While the members who do not agree to the proposals put forth in the petition belong to the former, the countries in support of the petition belong to the latter.

It is imperative to note that the divide between the developing countries and the developed countries in the WTO over various issues is not new. Recently, the divisive elections to the post of WTO Director General, which is still an unfinished business, also witnessed a stark divide between the developed countries and developing countries. Hence, the differences between the two sides is not a new phenomenon.

It can be noticed that South-South cooperation is strengthened at the WTO, wherein the developing countries have consensus over various issues to mitigate the threats from the policies proposed by the developed countries. The joint petition proposed by India and South Africa, India's support to Nigerian candidate Ngozi Okonjo-Iweala and several other issues implies the strengthening of the South-South cooperation.

The petition submitted by India and South Africa signifies the need for the members to move beyond 'vaccine nationalism' and calls for global solidarity. It is completely justified for India to propose such solutions since its actions in the past have largely been altruistic. However, it is alleged that the officials from the European Union opine that 'India is not a benevolent power' which probably points to a trust deficit among the members. India's contribution to the fight against AIDS implies otherwise. It was the affordable generic drugs produced by India which came to the rescue of the developing countries. India also played a pivotal role in supplying Hydroxychloroquine to various countries, including the developed nations like the United States of America during the pandemic.

The fact that over 9,00,000 people from across the world have also petitioned the WTO seeking universally accessible and affordable vaccines highlights the expectations that the public at large has from the organization. The petition asks all governments, WTO members and pharmaceutical companies to “ensure access to lifesaving COVID-19 vaccines, treatments and equipment for everyone in the world”. This petition adds a persuasive value to the proposal put forth by India and South Africa.

The entire WTO framework is to function under normal circumstances. While it is true that it also provides for certain exceptions in cases of emergencies, the situation that we are facing today is unprecedented since WTO has come into effect. With countries, including the developed ones across the world turning protectionist, it is time for WTO to accommodate the views of the developing countries. The failure to accommodate the concerns of the developing countries would probably make the effectiveness of WTO uncertain. It is important to consider the fact that the WTO's appellate Dispute Settlement was brought to a standstill and there are several bottlenecks over various issues pending at the WTO.

While it is true that waiving intellectual property rights hinders innovation and invention, the concerned stakeholders are required to consider the present circumstances. It would be prudent for the members of WTO to find a middle path which would be beneficial to the member states, pharmaceutical companies, and public at large. The members should expedite the process involved in arriving at a consensus and demonstrate that WTO can be effective in resolving concerns of its members.

This would probably require the developed countries and the developing countries to understand the concerns of each other and arrive at a middle path. We can only hope that the members arrive at a concrete outcome after the churning of opinions in the discussion