KUALA LUMPUR: “Oh what a tangled web we weave When first we practice to deceive”. Walter Scott’s lines, already over two centuries old, nicely sum up how pursuit of national advantage and private gain have undermined the public interest and the common good.
As known COVID-19 infections exceed 100 million internationally, with more than two million lives lost, rich countries are now quarrelling publicly over access to limited vaccine supplies. With ‘vaccine nationalism’ widespread, multilateral arrangements have not been able to address current challenges well.
Vaccine nationalism has meant that the rich and powerful come first, not only in societies, but also in the world, making a mockery of the ‘No one left behind’ slogan embraced by the international community.
Many developing countries and most of their people will have to wait for access to vaccines while the powerful and better off secure prior access regardless of need or urgency.
Vaccine nationalism and the prospect of more profits by not scaling up output to induce scarcity may thus cause more losses of both lives and livelihoods, causing economies to slow further.
TRIPS waiver blocked
The 1994 World Trade Organization (WTO) agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) greatly strengthened and extended intellectual property rights (IPRs)transnationally. It is easy to forget that strict cross-border enforcement of IPRs claims are relatively recent.
While many assume that IPRs are needed to promote research and development for technological progress, this is seriously challenged by most serious histories and historians of technology.
Perhaps more importantly, there is considerable evidence that IPRs may well have inadvertently slowed progress. More generally, IPRs have discouraged research cooperation and knowledge sharing, so essential to progress.
By enabling, and thus encouraging ‘patent trolling’ and hoarding, IPRs have effectively denied access to patented products and processes except to the highest bidders.
Public health exception
Following the pushback to the original TRIPS, boosted by Nelson Mandela after he became South African President in 1994, developing countries have secured legal access to ‘essential medicines’.
A 2001 WTO Declaration on TRIPS and Public Health affirmed the right of countries to protect public health, enable access to medicines, and issue a compulsory license (CL), even without a health emergency.
In return for developing countries extending IP protection, developed countries promised to establish manufacturing capabilities for patented processes in developing countries, and incentivise their transnational corporations (TNCs) to enable technology transfer to developing countries, especially the least developed countries (LDCs).
In 2017, the TRIPS Agreement was amended to confirm developing countries unable to domestically produce certain pharmaceuticals, could issue compulsory licenses to import patented drugs produced abroad under compulsory licensing.
But although TRIPS now allows such use of compulsory licensing, developing countries are still constrained by its complex rules, procedures and conditions as well as constant TNC threats and inducements, supported by their governments.
Hence, use of compulsory licensing by developing countries has been largely limited to several more independent middle-income countries, such as India, Thailand, Indonesia and Malaysia, and to HIV/AIDS medicines.
The TRIPS waiver–proposed by South Africa, India and others to the WTO–seeks temporary suspension of several TRIPS provisions on patents, design and protection of undisclosed information.
The proposed waiver seeks to greatly scale up production of and access to COVID-19 vaccines, medicines and equipment, especially in developing countries, to contain the contagion. But the Trump administration, the European Union (EU) and their allies have stubbornly blocked the waiver.
The EU claims “an [intellectual property] system is…also to ensure the publication and dissemination of research results, when otherwise they will remain secret.” It omits to acknowledge that no vaccine developer has shared research results needed to scale up vaccine output by others, including generic producers.
Vaccine nationalism rules
Although the waiver implies treating vaccine production and distribution as public goods, and the European Commission (EC) President Ursula von der Leyen has spoken about “working together” and “solidarity” for the “public good”, the EU continues to block it.
But after AstraZeneca and Pfizer failed to meet their contractual obligations to deliver vaccines to EU countries, the now embattled EC President has criticised the companies for not meeting their contractual obligations. She did not hesitate to emphasise that EU taxpayers and governments had paid much to accelerate vaccine development and production.
Ironically, the most feasible way forward now involves approving the TRIPS waiver at the WTO. The U.S. and EU governments can make the badly needed breakthrough and thus do much to restore international confidence in their intentions.
With Biden announcing the U.S. re-joining the World Health Organization (WHO), the new administration can not only lift the embargo on exports of vaccines, vital medicines and equipment, but also advocate for the TRIPS waiver, quickly winning appreciation for his commitment to multilateral leadership.
U.S. taxpayers have already spent many billions for Trump’s Operation Warp Speed to accelerate private vaccine development and distribution. Now, both the U.S. and EU are well placed to greatly accelerate vaccine production and distribution for the world at relatively little additional cost.
They can do so by ensuring that relevant information is quickly shared to rapidly scale up vaccine production. For example, mass vaccine production capacity remains limited internationally, but it is the Serum Institute of India, not a developed country facility, which is acknowledged as the world leader by far.