For all the talk about vaccines being a global public good, industrialised nations are dragging their feet on an arrangement proposed by South Africa and India at the WTO for equitable and widespread access to COVID-19 vaccines. ISHUPAL SINGH KANG explains the structural limitations of the global intellectual property regime.
_________
IN September 2020, António Guterres, the secretary-general of the United Nations, announced that the world body is "working to advance treatments and therapies as a global public good—and backing efforts for a people's vaccine available and affordable everywhere". If one goes by the numerous declarations of commitment to solidarity, fairness and equity by world leaders and organisations in recent months, Guterres' statement would seem to be a reflection of the current global mood. And yet, even as the first doses of COVID-19 vaccines have started being administered to residents of the Global North, it is far from clear how this rhetoric would materialise into an actual "people's vaccine".
Recently, Kate Elder, vaccine policy advisor at MSF (Doctors Without Borders) said, "It's increasingly looking like the ship has sailed on equitable vaccine distribution." In fact, the current scenario completely exposes how hollow the claims of global solidarity and equitable access are. There is overwhelming rhetoric to the contrary, but the current framework of global economic governance has fundamental limitations—conceptual and institutional—which make delivering vaccines as a global public good quite improbable.
This hollowness is best manifested in the debates around the recently proposed WTO-TRIPS waiver. India and South Africa have attempted to secure an intellectual property waiver on COVID-19 related products including vaccines, therapeutics and diagnostics. However, there is complete lack of consensus within the TRIPS Council on their proposal. Several WTO member nations that have secured the vaccine through bilateral deals with manufacturers have blocked their proposal, which has effectively limited the possibility that the vaccine will become available in other parts of the world sooner rather than later. Central to the argument of these opponents of the waiver is a challenge to the very basis, or relevance, of intellectual property rules that would ensure equitable and widespread access to the vaccine and other medical technologies.
“.India and South Africa have attempted to secure an intellectual property waiver on COVID-19 related products including vaccines, therapeutics and diagnostics. However, there is complete lack of consensus within the TRIPS Council on their proposal.
For instance, the European Union has said there is "no indication" that Intellectual Property Rights have been a "genuine barrier in relation to COVID-19-related medicines and technologies". It would appear that other countries that are said to be blocking the waiver share this point of view.
There is another, even more pernicious, argument on the relevance of intellectual property to vaccine access. According to it, intellectual property rules are an appropriate framework, and have contributed to fast-paced vaccine development, therefore restricting it would actually be counter-productive.
Yet the relevance argument does not hold much water. Public health groups such as MSF, and the co-sponsor of the waiver, South Africa, have highlighted specific instances in their responses and commentaries where intellectual property rules hindered the manufacture and supply of diagnostics, medical equipments, treatments and vaccines during the pandemic.
One other aspect is the unprecedented scale on which legislative and policy changes, such as compulsory licenses and government usage, have been adopted by industrialised nations including France, Germany and Canada, to ease their non-authorised use of patents.
“Public health groups such as MSF, and the co-sponsor of the waiver, South Africa, have highlighted specific instances in their responses and commentaries where intellectual property rules hindered the manufacture and supply of diagnostics, medical equipments, treatments and vaccines during the pandemic.
As for the view that incentives are absolutely central and necessary to research and development (R&D), it should be noted that the intellectual property framework has been seen as inadequate, especially medical technologies like vaccines. Prof. Ana Santos Rutschman, who teaches at the Saint Louis University School of Law noted in a July 2020 paper published in the Washington University Journal of Law and Policy that "a corollary of predominantly patent-driven R&D models has been the inability of patents to provide meaningful incentives to R&D on welfare-enhancing goods like vaccines".
Still more relevant is the fact that substantial public funding has been poured into the development of a vaccine for COVID-19. In fact, the debate over the TRIPS waiver reveals a fundamental problem. The sheer inability of the current globalised legal framework to meaningfully address concerns of solidarity or keep a vision of equitable access and fairness at its core has been exposed. The entrenchment of stronger global intellectual property rights is a central aspect of the neoliberal turn that undergirds international economic law today. One outcome that is of critical significance in this context is the framing of intellectual property as primarily a trade and investment issue. This "intellectual property-free trade" frame has been greatly consolidated and elevated since 1995, when the WTO became operational. This lies at the root of the current impasse about the TRIPS waiver.
First, within the global economic governance framework, issues oriented to public health are relegated as second-order concerns. The intellectual property-trade linkage effectively marginalises social aspects of intellectual property. These concerns would only be recognised and accommodated if there is no direct conflict between social needs and the demands of global capital. There is no dearth of scholarly work that highlights the role of the TRIPS agreement in accentuating public health crises by constraining access to cost-effective and affordable medicines and other health technologies.
“The sheer inability of the current globalised legal framework to meaningfully address concerns of solidarity or keep a vision of equitable access and fairness at its core has been exposed.
Importantly, even when concerns such as access to medicines are recognised, the broader framing of the intellectual property-trade linkage is left unchallenged. The Doha Declaration on Intellectual Property and Public Health is a good example of this. The WTO framework was forced to actively discuss and debate the intellectual property rights vis-à-vis public health following widespread concerns about the growing HIV-AIDS crisis in Africa. Yet, on a substantial level, the Doha Declaration and subsequent developments (including the TRIPS Amendment) did little to displace trade and investment as prime concerns of the global economic governance framework.
Over the same time period, even higher intellectual property standards were included and enforced through bilateral and regional trade agreements, and aggressive business-as-usual trade agendas continued. As Prof. Valbona Muzaka notes in his book, Health for Some, "It may well be that what was 'given away' in terms of verbiage in the Doha Declaration will be claimed back by the trade-IP protection linkage being pursued further on behalf of industries within the trade regime and outside it."
Second, intellectual property and global rule-making around it have been securely lodged in the realm of international economic law. This has effectively transported the important decision-making and agenda-setting aspects to the WTO. At a conceptual level, this is perfectly in line with the depolitical and fragmented nature of international economic law.
On a more practical level, it substantially limits other sites, that might have substantial public health and intellectual property concerns, from having a meaningful voice. In other words, once intellectual property came to be embedded within the trading regime in 1995, it become quite difficult to pursue it outside the trade regime. Attempts by the WHO to explore and regulate intellectual property-related public health issues is a testimony to this. As Spring Gombe and James Love note in their book, Access to Knowledge in the Age of Intellectual Property, in which they refer to discussions on intellectual property, trade and public health in the early years (1995-2002) of the TRIPS era, a "curious feature of the debate…was that it was somehow perfectly legitimate for policymakers in the areas of trade and intellectual property to bring health-related issues to the center of their work, but totally illegitimate for the WHO, which holds the global mandate for public health, to discuss the effects of intellectual property on health worldwide."
“Yet, on a substantial level, the Doha Declaration and subsequent developments (including the TRIPS Amendment) did little to displace trade and investment as prime concerns of the global economic governance framework.
This in-built incompatibility of the WHO and the intellectual property-trade linkage unfortunately has persisted strongly. We can witness this in the evolution of the WHO's Global Strategy on Public Health, Innovation and Intellectual Property (GSPOA). Heralded in 2008 as a watershed development, the GSPOA has failed to make any substantial change in the field of intellectual property, innovation policies or public health. And yet the bouquet of arguments made during the developments leading to the GSPOA have a familiar ring to them—the arguments were that, per se, Intellectual Property rules were not a problem and that the WHO is only to be "involved in healthcare aspects, excluding other decisive aspects influencing the health sector".
Therefore, it would not be very surprising that at the very end of the two-year negotiation before the GSPOA was adopted, several member-nations and public health groups disagreed with both the process and its outcome. As Germán Velásquez, Special Adviser, Policy and Health at the South Centre, Geneva, wrote in a 2019 research paper that reviewed the GSPOA, "Several developing countries—Argentina, Bangladesh, Barbados, Bolivia, Cuba, Ecuador, Ghana, India, Jamaica, Nicaragua, Suriname, and Venezuela—expressed their disagreement with the way the closed-door informal consultations were carried out as well as with the result of these consultations to exclude the WHO as a stakeholder in future."
“It was somehow perfectly legitimate for policymakers in the areas of trade and intellectual property to bring health-related issues to the center of their work, but totally illegitimate for the WHO to discuss the effects of intellectual property on health worldwide."
The third broad aspect that flows from the above discussion on intellectual property and global rule-making is that the trade-intellectual property linkage limits discussion and the development of alternative possibilities. One key aspect of the GSPOA was to explore ways to delink the prices of medical technologies from its research and development costs. Velasquez notes that "a small group of industrialized countries, where the large pharmaceutical industry is located, continues to oppose what was, and remains the heart of the GSPOA: the adoption of a binding international treaty for R&D and innovation for health…This point today seems far from the interest of the WHO Secretariat or of the countries that promoted it simply because of the lack of space to continue discussing such a politically sensitive issue." Put differently, while intellectual property rules progressively get entrenched within the realm of international economic law, there is hardly any push for, nor active discussion on, alternatives such as a research and development treaty.
They say every crisis also presents an opportunity—hence it is imperative that any discussion on a post-COVID-19 'global knowledge economy' must actively recognise the issues that truly undergird international economic law today. These foundational issues have been regulating innovation policies away from the premise of equitable access. The rhetoric of global solidarity means little unless we recognise this dissonance, for it could make us—all over again—susceptible to myopic vision and band-aid solutions.
(Ishupal Singh Kang is a lecturer at the Jindal Global Law School. The views are personal.)