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Jun 10, 2022

Have India and South Africa, Lead Sponsors of the TRIPS Waiver Proposal, Reconciled to a Weak Text?

At the cusp of the 12th WTO ministerial conference, the co-sponsors seem to be giving up on the fight.
The World Trade Organization in Geneva, Switzerland on June 8, 2022. Photo: Priti Patnaik.

Geneva: After more than 18 months of bringing their bold proposal at the World Trade Organization (WTO) to temporarily suspend some intellectual property protections to decisively address COVID-19 in an effort to enable local manufacturing capacity, sponsors India and South Africa do not seem to be leading from the front, Geneva-based trade sources say.  

To be sure, the fight to preserve the original proposal has traversed a tortuous, circuitous path over many months, replete with leaks and other machinations that some say are typical of the international trade policy world. 

Now, at the eleventh hour, when these negotiations could be drawing to a close, these lead co-sponsors appear to have been locked into positions they cannot seem to get out of, sources closely following these discussions say. 

How we got here

Recall that the original TRIPS waiver was discussed, formally and informally, over many months at the TRIPS Council at the WTO, where mostly developed countries, such as the US, the UK, EU countries and Switzerland denied the role of intellectual property being a barrier in the access to medical products during the pandemic. The WTO membership has not engaged in text-based negotiations of the original proposal, submitted in October 2020. 

In what then seemed as a watershed moment in May 2021, the US lent limited support to the proposal by agreeing to consider a limited waiver for vaccines. This changed the discussions decisively. 

Subsequently, India and South Africa had multiple bilateral consultations on their proposal with smaller groups of members for most of 2021. Later, South Africa and the European Union had long bilateral consultations in the latter part of 2021. While it seemed they were close to a deal back then, the Ministerial Conference scheduled in December 2021 was unexpectedly postponed when trade negotiators could not travel to Geneva on account of the emergence of the Omicron variant of SARS-CoV-2. 

Soon after, WTO Director-General Ngozi Okonjo-Iweala took the matter into her own hands, given the stakes for the beleaguered organisation she heads. The WTO’s inability to respond effectively to the pandemic and to wider challenges in international trade have brought into question its effectiveness as a multilateral institution. 

She brokered talks between India, South Africa, the EU and the US, assisted by Deputy Director General Anabel González. While the talks went on during the early months of 2022, these four key members were unable to reach consensus. This is where the story gets tricky. 

Also read: COVID Vaccines: WTO Compromise Over India and South Africa’s Proposal is Disappointing

What happened next appears to be deliberately obfuscated. A text, ostensibly called the ‘Quad text’ was leaked in Brussels. The text was a shadow of the original TRIPS waiver proposal and was, in fact, closer to the EU’s proposal on essentially streamlining the compulsory licensing system. Attempts were made to present this text as an agreement. Diplomatic sources say this caused confusion among other WTO members not party to these discussions. 

Without the ownership of the text by the US, India and South Africa, (the EU supported the text), Okonio-Iwaela brought her version of the text to the wider membership. This version reflected elements of the leaked text.

Finally, in May 2022, when the Ministerial was barely weeks away, WTO members began text-based negotiations. 

What is currently under negotiation?

Activists have decried the current text as one that could set bad precedents, and which may potentially make it harder to make use of existing TRIPS flexibilities. There have been calls in India and South Africa to walk away from a bad outcome. 

The current text has conditions on eligibility, a major source of contention between the US and China. It has limitations on exports of vaccines only to eligible members. Some believe that the text might be useful to produce and export vaccines under limited conditions.

But it also has elements that seek to qualify conditions of using any potential solution by having language such as “necessary”, “essential”, “required”, allegedly inserted at the suggestion by developed countries. Legal experts say that this makes it difficult to use any flexibilities. It is understood that developing countries are trying to fight such qualifications

At this stage, it is unclear if members will commit to expanding the scope of the waiver to also include therapeutics and diagnostics. 

Are India and South Africa locked into compromises made by politicians?

Sources suggest that it was during the discussions between these four key members (the EU, the US, India and South Africa) in early 2022, that compromises may have been made at the political level.  It is understood that the introduction of eligibility requirements, that essentially seeks to bar China from taking advantage of any waiver, was also made during this period. 

Now, as countries scamper to negotiate text with the Ministerial Conference less than 72 hours away (when this story went to print), India and South Africa, are not the leading voices in these discussions, sources tell us. 

“By not effectively pushing for strengthening the text at this stage, the lead co-sponsors appear to be endorsing the text by default,” a trade law expert familiar with the discussions told us. 

In fact, in recent days, India even made efforts to preserve the current text, essentially opposing suggestions from other co-sponsors. “Egypt, one of the 64 co-sponsors of the original TRIPS waiver proposal, brought in language to expand the scope of trade secrets in the existing text. But India resisted,” a source aware of the deliberations told us.   

A number of observers are perplexed as to why the lead co-sponsors are not bringing in elements from their original proposal to bolster the text under negotiation. 

Diplomatic sources tell us that these lead sponsors have not been backed sufficiently by other developing countries. “We have led the way for 18 months, and ultimately it has to be taken forward by others as well,” one official told us. 

Also read: TRIPS Waiver: A BIT of a Challenge for India

But this has been disputed. Seasoned observers ask where the coordination and leadership is among developing countries to make sure that the text is strengthened. “They have had no clear strategy,” a source who works with developing countries told us. This is a far cry, from the days when India and others led coalitions of developing countries at the WTO, just a few years ago. 

Undoubtedly, trade negotiations are complex. And this situation is no exception. Much of these parallel negotiations at the WTO (fisheries, agriculture, TRIPS waiver) have resulted in excluding and dividing developing countries and delegations, WTO watchers say. 

Others point to inconsistent support from Delhi to the Indian mission in Geneva. Some have even suggested inadequate negotiating capacities to deal with the brazen ways of trade diplomacy in Geneva. One source also hinted that the change of guard at the commerce ministry in India has had an effect on India’s willingness to go the distance. 

To be fair, the question of negotiating capacity is particularly true of smaller countries and delegations. But as a perceived leader of the developing world; one that was bold enough to bring a waiver proposal to the WTO, supporters of the waiver ask: why was India was not adequately prepared and resourced to crack these negotiations?

As we reported nearly a year ago, experts believe that India did not seem to have a consistent position on even using TRIPS flexibilities domestically. This lack of coherence might have translated into insufficient diplomatic leadership during this crucial period, sources suggest. 

Ultimately, the accountability of what has gone into these negotiations rests with political leaders, experts believe. Activists say that irrespective of technical teams working hard in these discussions, a lot could be unravelled if deals have already been made at the political levels.

“If we have trade ministers who do not fully understand what they are signing up to, the work done by the technical teams is undone,” a source closely involved in these discussions told us.

Trade circles in Geneva are abuzz with news of pressure being applied on developing countries who are “standing in the way” of reaching a consensus on some of the deliverables for the Ministerial. In several instances, developed countries have threatened to walk away from negotiations, Third World Network has reported. 

Similarly, it is understood that the government of South Africa has also faced pressure. On several occasions, South African leadership has insisted on a full TRIPS waiver. A source familiar with the progression of these events told us that attempts were made to get South Africa to agree on a deal in a secretive manner. But after intervention from civil society organisations, the government allegedly reconsidered its position. 

But this has not meant that South Africans are pushing for strengthening the text at this stage. 

“The time for intervention may have been lost,” one trade expert tracking these discussions ball-by-ball, told us. Queries sent to Indian and South African authorities went unanswered.

The WTO Director-General’s push for outcomes ahead of the Ministerial has also had an impact on developing countries, multiple sources said.

What are the implications on the Global South?

There is wide recognition of the unprecedented momentum and the intense discussions in furthering the access to medicines agenda as a result of the TRIPS waiver proposal. Irrespective of the outcome next week in Geneva, India and South Africa, with support from others, have permanently changed the complexion of these debates. 

However, by getting boxed into a narrow set of clarifications, far from the expansive waiver proposal first suggested, these countries could have shrunk the negotiating leverage of the developing world at large, sources warn.

“By agreeing to a potentially bad outcome, these countries have shown that developing countries can be bullied into submission. This will have consequences for the future,” one activist told us in Geneva this week. 

In the context of these discussions, trade scholars are divided on whether the WTO is really a level playing field. After all, the 164-member organisation is driven by consensus. But it has been increasingly hard for the WTO to shake off the perception that it is run by – and for  – the developed world. 

“The pressure of negotiating with the rich world is palpable. It is not easy,” one developing trade diplomat told us recently. 

A few blocks away at the World Health Organization, countries are getting deeper into negotiations for a new pandemic instrument. What transpires at the WTO will be a harbinger for what could follow at WHO, especially on the question of intellectual property and its impact on equity.

Meanwhile, it was reported that the US is “confident that India will be engaging with intentionality at the WTO meet”. The Hindu quoted US Trade Representative (USTR) Katherine Tai as saying: “Now, India knows its own mind. India has a complex place in the world order to put it diplomatically.”

“In terms of India’s approach to trade and to the WTO, what I see is an increasingly strategic India when it comes to trade, and so, I am confident that India will be engaging with intentionality,” she continued. 

Her remarks had come in response to a question on India’s track record in Ministerials being “not great”.

Priti Patnaik is the Founding Editor of Geneva Heath Files, a journalistic initiative that tracks power and politics in global health. She is based in Geneva, Switzerland. Follow @filesgeneva on twitter.  

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