TRIPS and COVID-19 Vaccines: The New WTO TRIPS COVID-19 Waiver

Abstract

The COVID-19 pandemic (coronavirus disease, previously known as novel coronavirus 2019) and the inequality of access to COVID-19 vaccines generated a proposal for a waiver by the World Trade Organization (WTO) of broad sections of the Agreement on Trade-Related Intellectual Property Rights (TRIPS), on a time-limited basis. India and South Africa presented a proposal to that effect in October 2020. The text proposed was controversial, led to considerable debate in the TRIPS Council and eventually led to a lengthy stand-off in the TRIPS Council, from October 2020 until May 2021. The European Union and the United States were the principal (but not the only) WTO Members opposing this proposal. Following the transition from the Trump Administration to the Biden Administration, the United States changed its position on a possible TRIPS COVID-19 waiver (in May 2021) and declared its willingness to engage in text-based negotiations. That prompted India and South Africa, together with other co-sponsors, to produce a somewhat revised version of their earlier proposal. Shortly after the change in the US position, the European Union presented an alternative proposal for a WTO COVID-19 waiver, in June 2021. It was only in the period of December 2021 to March 2022 that serious negotiations on the text of a TRIPS COVID-19 waiver took off, initially in ‘high-level group’, consisting of India, South Africa, the European Union and the United States. The outcome of these negotiations was taken to the TRIPS Council and resulted eventually in the adoption of a TRIPS COVID-19 waiver decision by the WTO Ministerial Conference, in June 2022. This article tracks the different proposals for a TRIPS waiver through their various phases, in a broader WTO and TRIPS context. It also evaluates the contributions of the different proposals to the final text of the TRIPS COVID-19 waiver decision and arrives at some conclusions as to the merits and significance of the resulting waiver. WTO, TRIPS, Marrakesh Agreement Establishing the World Trade Organization, WTO Agreement, waiver