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Activists protest at the World Trade Organization's headquarters

Activists stage a demonstration at the World Trade Organization's headquarters in Geneva on June 15, 2022. (Photo: Fabrice Coffrini/AFP via Getty Images)

After WTO Failure, Nations Urged to 'Outright Defy' Pharma Patent Rules to Fight Covid

"Governments must take immediate actions to bypass the WTO's prioritization of pharmaceutical monopolies over human lives," says a global coalition of nearly 300 civil society groups.

Jake Johnson

The World Trade Organization's complete failure on Friday to lift intellectual property barriers that have hindered vaccine and treatment access throughout the Covid-19 pandemic led nearly 300 civil society groups from across the globe—including Zambia, India, Bolivia, and Brazil—to call on governments to "outright defy" WTO patent rules if necessary to combat the still-spreading virus.

"A few wealthy countries promoting pharmaceutical corporation interests have been able to block the use of the WTO's waiver mechanism to temporarily suspend such barriers despite more than 100 WTO member countries supporting a waiver," the organizations said in a joint statement Friday. "This outrageous situation underscores that governments must take immediate actions to bypass the WTO’s prioritization of pharmaceutical monopolies over human lives."

"Countries that don't accept these rules are subjected to trade threats and repercussions. This cannot continue."

The patent agreement that the WTO adopted in Geneva on Friday merely clarifies existing governmental authorities to ramp up vaccine production through compulsory licensing and eases some export restrictions, changes that are unlikely to do much to expand access in developing countries.

Given that the new WTO deal likely forecloses the possibility of a sweeping patent waiver in the near term, the 298-group coalition said that governments must "take every step necessary to save lives and end the pandemic, including by fully using the WTO's existing, albeit limited, flexibilities."

If those flexibilities aren't enough to guarantee sufficient production and equitable distribution of vaccines, therapeutics, tests, and other tools needed to fight the pandemic, the coalition urged governments to "circumvent the WTO's pharmaceutical monopoly rules when possible and outright defy those rules when needed."

And to ensure that developing nations don't face massive sanctions and other penalties for running afoul of patent protections, the civil society groups implored countries to "pledge not to use the WTO's and other trade and investment agreements' dispute mechanisms or other means in an attempt to stop or dissuade countries from producing, distributing, or using medical technologies or from sharing information on how to do so regardless of WTO and free trade agreement IP rules."

"The world must not allow the deadly vaccine apartheid that characterized the first generation of Covid vaccine manufacturing and distribution to be recreated when it comes to Covid diagnostics, treatments, and second-generation vaccines," the coalition said. "With the WTO process failing to suspend WTO IP rules to prevent this ongoing and disastrous injustice, governments who are also WTO member states must now act in good faith outside of the WTO's strictures."

The pharmaceutical industry's monopoly control over coronavirus vaccine production has led to higher costs and deeply unequal access to shots. More than two years into the pandemic, just 18% of people in low-income countries have received at least one coronavirus vaccine dose, heightening the risk that new and potentially more dangerous variants will emerge and spread worldwide.

While the World Health Organization and South African scientists have worked to replicate Moderna's mRNA-based coronavirus vaccine without help from the pharmaceutical giant, campaigners warn the company's existing patents could undermine efforts to widely distribute the technology.

"Even under Moderna's pledge not to enforce patents during the pandemic, the company could turn around and enforce patents while Covid-19 is still endemic in Africa," Tian Johnson, founder of the African Alliance, said earlier this year. "That would effectively derail all of the work that the WHO and African scientists have put into building vaccine manufacturing capacity on the continent. The damage that would cause extends beyond the fight against Covid, preventing Africa from preparing for the next pandemic."

Observers have also raised concerns that developing countries could face massive reprisals from rich nations if they decide to ignore patent protections. As The American Prospect's Robert Kuttner explained last week, the U.S. government is required under a 1988 law backed by Big Pharma "to monitor other nations for violations of intellectual-property laws."

"Most countries in the world undergo this evaluation by the Office of the U.S. Trade Representative annually," Kuttner noted. "If a country enacts drug price caps or makes it easy to make generic versions of medicines under compulsory licenses, it can be placed on a kind of blacklist. Countries on the list may have more difficulty selling bonds, raising private capital, and enlisting economic cooperation of the United States on other issues."

It's far from clear that the Biden administration would be willing to heed civil society groups' call to not retaliate against countries that defy patent protections in the interest of expanding access to Covid-19 vaccines and treatments. The administration largely took a backseat to the WTO negotiations despite claiming to support a waiver.

"Countries that don't accept these rules are subjected to trade threats and repercussions, undermining their own sovereign processes and rules," said the civil society coalition. "This cannot continue."

In a statement on Friday, U.S. Trade Representative Katherine Tai said that "going forward, the Biden administration will continue work with WTO members, the private sector, and other partners to expand vaccine manufacturing and distribution to facilitate the global health recovery needed for a robust global economic recovery."

Read the full joint statement from 298 civil society organizations below:

More than two years into a pandemic that has killed 15 million people, World Trade Organization intellectual property barriers shamefully remain a deadly obstruction limiting global access to Covid-19 vaccines, tests, and treatments. A few wealthy countries promoting pharmaceutical corporation interests have been able to block the use of the WTO's waiver mechanism to temporarily suspend such barriers despite more than 100 WTO member countries supporting a waiver. The WTO's notoriously exclusionary, oppressive processes have been deployed instead to force through a sham text that will not improve global access to Covid-19 medicines because it not only fails to remove IP obstacles but outrageously adds further constraints to existing WTO flexibilities for medicines production. This outrageous situation underscores that governments must take immediate actions to bypass the WTO's prioritization of pharmaceutical monopolies over human lives.

By acting on behalf of pharmaceutical interests and blocking WTO removal of intellectual property (IP) barriers to global vaccines, tests, and treatment access, the European Union, Switzerland, and United Kingdom have betrayed the billions of people worldwide who still need access to lifesaving vaccines, medications, and diagnostics. In failing to deliver on a vaccine waiver for which it announced support and blocking the inclusion of treatments and tests, the United States has also turned its back on a planet desperate for the Covid pandemic to end.

The failure to temporarily waive the WTO's Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) as demanded by the vast majority of the world's countries and by public health experts and health workers, generic medicine manufacturers, human rights advocates, faith leaders, labor unions, community groups, scores of Nobel laureates and former heads of state, the World Health Organization director-general and even the Pope spotlights just how broken and dangerously out-of-touch the WTO remains.

Health needs cannot be subservient to pharmaceutical monopoly's profits. In response to the ongoing failure to adopt a temporary waiver of pharmaceutical IP monopolies on Covid medical countermeasures, civil society organizations around the globe are calling on governments to:

1. Pledge not to use the WTO's and other trade and investment agreements' dispute mechanisms or other means in an attempt to stop or dissuade countries from producing, distributing or using medical technologies or from sharing information on how to do so regardless of WTO and free trade agreement IP rules;

2. Take every step necessary to save lives and end the pandemic, including by fully using the WTO's existing, albeit limited, flexibilities;

3. Circumvent the WTO's pharmaceutical monopoly rules when possible and outright defy those rules when needed.

This united call comes as the WTO concludes its most significant decision-making meeting since the start of the Covid-19—the 12th WTO ministerial Conference—without agreeing to temporarily remove WTO IP rules that restrict the production and supply of Covid vaccines, diagnostics and therapeutics

For roughly 20 months, the obstinance and bullying of a few very economically-powerful WTO member states was allowed to run roughshod over the wishes of more than 100 countries to waive WTO TRIPS obstacles to global access to Covid-19 medical tools. The TRIPS waiver text proposed in October 2020 by South Africa and India enjoyed cosponsorship from 65 WTO member countries, but outrageously negotiations on this text were never allowed. Under the WTO's unacceptable processes, a text written by the WTO secretariat and supported only by the main waiver-blocker, the European Union, was pushed forward to be railroaded through the Ministerial. History will harshly record the WTO's contribution to Covid vaccine, treatment and test apartheid.

The WTO's threat to global access to medicines did not start with Covid-19. For decades, the WTO has steadfastly refused to put shared global priorities like saving lives and ending pandemics ahead of the narrow profit and power-seeking interest of pharmaceutical monopolies. This was clear at the turn of the century during the peak of the HIV/AIDS crisis, and has only become even more clear with the WTO's unconscionable inaction during the Covid crisis today.

The WTO's draconian IP rules have already contributed to prolonging the current pandemic and, if countries can't get these rules out of the way, they will continue to contribute to massive public health, economic, and social damage during future pandemics as well. And pandemics are not the only matters of concern. Billions of people lack access to lifesaving medicines that prevent, treat and cure illnesses because intellectual property regimes distort research priorities, create scarcity by artificially restricting supplies, and allow excessive pricing and inequitable distribution that affects the poor and people living in lower-income countries. Countries that don't accept these rules are subjected to trade threats and repercussions, undermining their own sovereign processes and rules. This cannot continue.

The world must not allow the deadly vaccine apartheid that characterized the first generation of Covid vaccine manufacturing and distribution to be recreated when it comes to Covid diagnostics, treatments and second-generation vaccines. With the WTO process failing to suspend WTO IP rules to prevent this ongoing and disastrous injustice, governments who are also WTO member states must now act in good faith outside of the WTO's strictures.


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