Developing Countries Call for a Review of the TRIPS Agreement at the WTO
Newsletter Edition #213 [The Files Brief]
Hi,
The dust has barely settled from the quiet burial of the TRIPS Waiver discussions at the WTO. Some developing countries have now called for a review of the TRIPS Agreement in the context of challenges including from the climate crisis, health emergencies and food insecurity.
Colombia, and a few other countries have called for intellectual property matters to be brought front and center of the WTO.
This is an important development, also seen from the lens of the ongoing discussions at WHO, where IP matters have spun an impasse in the negotiations towards a new pandemic agreement.
We bring you this quick and brief update on the recent discussions at the General Council Meeting at the WTO last month. We also present voices of scholars, who have critically examined the limitations and opportunities within the current framework of the TRIPS Agreement.
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I. TRADE & HEALTH UPDATE
Developing Countries Call for a Review of the TRIPS Agreement at the WTO
Dismayed by the lack of effective response from the WTO during, and in the aftermath of the COVID-19 pandemic, some developing countries are calling for a systematic review of the agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).
This was discussed at a meeting of the General Council at the WTO during March 21-22, following the 13th Ministerial Conference in Abu Dhabi earlier in the year. The TRIPS extension decision for COVID-19 tests & treatments got junked at the WTO Ministerial.
In the past, other stakeholders including civil society organizations, and academics have called for a review of this agreement that is 30 years old.
At the WTO, some developing countries have called for a mandated review of the TRIPS Agreement in light of the special challenges brought by the climate crisis, health emergencies food insecurity.
A communication from Bangladesh, Colombia, Egypt and India (WT/GC/W/925 / IP/C/W/708) dated, March 8, 2024 on TRIPS For Development: Post MC13 Work On TRIPS-Related Issues, said:
“1. We, keeping in mind the upcoming 30th anniversary of the TRIPS Agreement, call upon the Council for TRIPS to undertake and finalize its first review under Article 71 on the implementation of the TRIPS Agreement.
2. Pursuant to paragraph 19 of the Doha Ministerial Declaration, we request the Council for TRIPS to expedite ongoing work to examine the relationship between the TRIPS Agreement and the Convention on Biological Diversity, and the protection of traditional knowledge and folklore.
3. We also call upon the TRIPS Council to examine how the TRIPS Agreement could facilitate
transfer and dissemination of technologies to developing countries including LDCs.
4. We further call upon the Council to examine the TRIPS Agreement, the Doha Declaration on the TRIPS Agreement and Public Health of 2001 and the Ministerial Decision on the TRIPS Agreement of 2022, to review and build on the lessons learned during COVID-19, with the aim to address the concerns of developing countries including LDCs in the context of health emergencies including pandemic.
5. In undertaking this work, the TRIPS Council shall be guided by the objectives and principles set out in Articles 7 and 8 of the TRIPS Agreement and shall take fully into account the development dimension and shall provide a report on the progress made, including any recommendations, to the Ministers at the 14th Ministerial Conference.”
Article 71 of the TRIPS Agreement reads thus:
“Review and Amendment
1. The Council for TRIPS shall review the implementation of this Agreement after the expiration of the transitional period referred to in paragraph 2 of Article 65. The Council shall, having regard to the experience gained in its implementation, review it two years after that date, and at identical intervals thereafter. The Council may also undertake reviews in the light of any relevant new developments which might warrant modification or amendment of this Agreement.
2. Amendments merely serving the purpose of adjusting to higher levels of protection of intellectual property rights achieved, and in force, in other multilateral agreements and accepted under those agreements by all Members of the WTO may be referred to the Ministerial Conference for action in accordance with paragraph 6 of Article X of the WTO Agreement on the basis of a consensus proposal from the Council for TRIPS.
Some countries said it is not the place for it.”
It is understood that some developed countries indicated at the meeting last month, that the forum for such discussions was at the TRIPS Council and not the General Council.
COLOMBIA REFERS TO TRIPS COUNCIL AS “ANAEMIC”
In a blistering statement, Colombia, urged WTO members to bring IP Issues front and centre of the organization, and referred to the TRIPS Council as anaemic.
Statement made by Colombia at the meeting:
“…The scenario associated with intellectual property has been changing rapidly in recent years.
Just 2 or 3 years ago the world experienced a pandemic that paralyzed our societies and gave rise to the most critical debates on intellectual property. Global health became one, and discussions about equity and access to medicines took on a renewed role in all our discussions. The TRIPS rules were pushed to the limit and harshly questioned by a very significant number of countries.
Today, a few meters from here, a pandemic treaty to better respond to future pandemics is being discussed by our same countries at the WHO, with difficult and profound discussions about the role of IP in the diversification of production, equity and access.
On other hand, health costs that affect the budgets of all our countries have been growing steadily and drastically in recent years, and this caused mostly by new technologies.
This has made all our economies to take action, and even the largest economies in this room are now taking bold decisions on flexibilities under TRIPS and on drug price controls. That means that this is possible, there is room to improve access to medicines and health products. Global public spending has a steadily growing health component, strongly tied to exclusivity rights that by nature increase costs.
At the same time, the world faces a climate crisis. We all agree that we need the rapid dissemination of green technologies for mitigation and adaptation. The more competition there is, the more economic actors are authorized to participate, then the more effective and equitable our response to the challenges of climate change will be. However, the existence of exclusivity rights over technologies slows down and makes this dissemination more difficult. Collectively assessing the balance between greater speed and diffusion, on the one hand, and the promotion of innovation by some actors on the other, is of course a crucial issue in today's world.
Further, intellectual property is also at the center of debates on technological development, autonomy, sophistication of production chains and even national security. The great geopolitical debates are easily explained in technological terms. The technological gap between developing and developed countries, or the growing technological competition between state actors, has a fundamental component in intellectual property.
In short, intellectual property is at the center of the most important debates of our time:
- Human Health,
- climate change,
- budgetary sustainability,
- economic development of the developing world,
- geopolitical tensions in technology.
And the strictest intellectual property rules belong here, to the WTO. Not to WIPO, not to the UN, whose treaties or provisions are much less strict. The WTO TRIPS Agreement is the basis of the existing institutional rules scheme regarding intellectual property, and its monitoring and discussion belongs and should happen in this house, in the WTO.
And yet... at the WTO Ministerial we decided not to talk about any of this.
Several countries explicitly and repeatedly said that intellectual property would not be discussed at the ministerial. Despite being one of the 3 pillars of this organization along with goods and services, and despite being the basis of many of the main problems of our time, it turns out that it was better not to talk about intellectual property. Only a valuable paragraph, but in any case a repeated paragraph from the previous ministerial, and further a decision on non-violation claims that entered the ministerial results 'in extremis'. Those were the only, and meager, points that were achieved.
However, there were other points on Intellectual Property that were proposed as discussions for the Ministerials, to no avail. Colombia expressed its discontent from the very moment that the modalities and agenda proposed for the ministerial did not include any discussion of intellectual property. It is even ironic that after the Uruguay Round, in which a number of countries, especially developing ones, said that intellectual property should not be part of the WTO and others, especially developed ones, said that it was essential to include it in the WTO, today the roles have been reversed.
The developing world wants to have a conversation. Indeed, the world is increasingly dependent on IP-protected technologies, and yet we don't want to talk about it.
And it must be said: it was not just the Ministerial. The TRIPS Council, medically speaking, is anemic. Despite the great work of the Ambassador Pimchanok of Thailand and the Secretariat, and its efforts to advance the TRIPS Council, its agenda has remained practically the same for decades and the Council has not made progress on any of the global issues associated with intellectual property.
The TRIPS Council brings together a very technical niche of excellent officials, relatively small in size, but frankly the public policy discussion regarding the objectives pursued by this Organization and the Intellectual Property Agreement is missing.
Madam President, with this agenda item, together with our co-sponsors, we want to invite the Ambassadors to return to this topic, to get more involved; to demystify discussions about intellectual property and make them more plural and open; to lose the fear of addressing them beyond their technicalities.
The TRIPS is not nuclear physics: it is public policy that seeks a balance between innovation and access, and is one of the pillars of the WTO. Therefore these discussions cannot continue to be abandoned in the Ministerials, or limited here to a very narrow niche of experts.
The Group of countries that requested this agenda item has ideas and proposals to open the discussion more. About the review, about the Biodiversity Convention, about learning from the pandemic, about the technological evolution of developing countries.
These are not the only issues, we encourage everyone to bring proposals related to the rules of the Agreement to the center of this Organization, where it belongs, and with increasing importance. Colombia in particular will make a series of proposals associated with the periodic review of the implementation of the agreement that must be done according to its article 71.
We have been told that this is an issue that must be addressed at the TRIPS Council, so we will be making concrete proposals, and we hope that such a mandated discussion will finally be fulfilled after 30 years of waiting.”
The Future of the TRIPS Agreement
Following the Ministerial in June 2022, South Centre, an inter-governmental organization comprising developing countries, convened a discussion on the future of the TRIPS Agreement. Scholars called for a reform of the TRIPS Agreement and discussed whether “authoritative interpretations of some its key provisions are needed”.
At the discussion in October 2022, Anne Orford at the University of Melbourne, called for a termination of the TRIPS Agreement. Excerpts:
“…The impasse at the WTO has quite properly focused on the spectacle of wealthy states prioritizing the monopoly rights of their powerful pharmaceutical corporations over public health in the rest of the world, particularly the global south. Despite the power of such critiques, though, the debate is still conducted largely on the terms offered to us by the TRIPS Agreement, and largely TRIPS treats the existence of that agreement and the property rights enshrined as a given. But, as we know, the COVID Waiver debate is a symptom of a broader problem. The TRIPS Agreement was a revolutionary agreement, in my view, and I'll explain why I say that in a moment, which established a deeply flawed global regime of monopoly rights in this moment of disruption and change both at the WTO and in the international legal order more broadly. It's time to talk about terminating that TRIPS Agreement…
…so what's to be done? In conclusion, the current push for this [TRIPS] waiver has been made to seem radical, and yet it simply involves returning to a default position that was dominant only 25 years ago. So is that bad luck? Was this just a bad bargain? Is this now a situation where the US and the EU won in 1994, and everyone else lost, and now people in other countries have to be sacrificed to uphold these property rights in perpetuity? So unsurprisingly, my answer is no. That's why I think we need to talk about termination.
International lawyers have a tendency to think about this moment in which states are withdrawing from and terminating treaties as a bad thing as involving a threat to the international rule of law. But enabling change is part of what lawyers do. Commercial Law transactions always envisaged that a contract may need to be terminated in domestic law, we take it for granted that this can be overturned or legislation can be reformed. The only form of law which tends to be more difficult to change is constitutional law. But even then, most circumstance, most constitutions have mechanisms for revision. So international law does provide mechanisms for terminating or withdrawing from treaties….But I would say in brief that the circumstances in which states made that bargain that led to signing TRIPS have fundamentally changed providing grounds for termination. The US has torn up its part of the deal, resolves to seek flexibilities of the TRIPS agreement have been blocked systematically, and the WTO as an organization has proved unable to balance intellectual property rights and public health. And I would argue that these give grounds for terminating or withdrawing from the agreement, and that it's time to do so and to terminate this failed model of global monopoly rights that it champions…”
Scholars have noted “regime shifting” by developing countries actively seeking to recalibrate the TRIPS Agreement.
At the discussion, Siva Thambisetty from the London School of Economics also spoke of the deference that IP rules at the WTO have got:
“…International law increasingly interacts with IP in all sorts of negotiating fora and intergovernmental organizations…….Developing countries are actively seeking to recalibrate the TRIPS Agreement. When new norms are being negotiated, or all ones are sought to be reinterpreted in these diverse fora, what we're finding is that contrary to what is suggested by the literature on regime complexity, that says there is no hierarchization of international agreements, there is a de facto deference to IP rules, that is squeezing the negotiating resources of developing countries. ‘Collateralization’ arises for instance, when there is a bid to defer to the WTO or WIPO as best place to make rules on international IP or interpret them or when there is inertia that prioritizes a past way of doing things over future, or more appropriate and socially justifiable legal norms..”
In the context of the ongoing negotiations on the reforms to govern health emergencies, IP issues have caused an impasse, and developed countries point to the WTO as the house for these matters.
Undoubtedly, a re-examination of the TRIPS Agreement at the WTO, will have implications in other fora.
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