Vaccine nationalism and equitable access to COVID-19 pharmaceuticals: TRIPS Agreement under trial (again)
DOI | https://doi.org/10.1108/JITLP-03-2021-0012 |
Published date | 27 September 2021 |
Date | 27 September 2021 |
Pages | 166-183 |
Subject Matter | Strategy,International business,International business law,Economics,International economics,International trade |
Author | Boniface Chimpango |
Vaccine nationalism and equitable
access to COVID-19
pharmaceuticals: TRIPS
Agreement under trial (again)
Boniface Chimpango
Department of Law, University of Huddersfield, Huddersfield, UK
Abstract
Purpose –The purpose of this study is to contributetowards the debate about global access to COVID-19
vaccines,therapeutics and diagnostics.
Design/methodology/approach –The global scramble for COVID-19 vaccine and other related
pharmaceuticalproducts have once again exposed the limitations of the Agreementon Trade-Related Aspects
of IntellectualProperty Rights (TRIPS). High-income countriesare claiming a lion’s share of the first available
batches of the COVID-19 vaccine in total disregard of the consequences such approach would have on the
low-income countries that lack both the manufacturingwherewithal and the financial resources to purchase
the vaccine and other products needed to combat the pandemic. This paper reviews the existing TRIPS
Flexibilities and analyses their limitations with respect to equitable access of pharmaceutical products in
times of health emergencies. Thispaper then considers the unique challenges that have been brought to the
fore by the COVID-19 pandemic. Finally, this paper analytically explores some options that have been
proposed so far that the World TradeOrganization (WTO) or governments can take in the immediate to near
term to facilitate equitable access to COVID-19 pharmaceutical products and technologies. This research is
non-empirical, desk-based research. It is, therefore, based on the literature review of existing body ofwork
that is relevant to the topic under discussion. Mindful of the epistemological challenges that are always
associated with desk-based research,part of the methodology of this work is to seek support from related
empirical studiesbased on different philosophical underpinnings butthat confirm the working hypothesis of
this research.
Findings –This paper finds that there is still a need for a comprehensivereform of TRIPS Agreement to
streamline the voluntary licencing system which is an important tool for low-income countries’access to
affordable pharmaceuticals. However, for purposes of dealing with COVID-19, WTO members should
consider establishing pooled Licencing Facilities and procurement strategies via already existing political,
economicor regional trade groupings.
Originality/value –This research is original. All sources have been acknowledged. This research
synthesises different research papers and applies different viewpoints to the debate on the impact of the
TRIPS Agreementon equitable access to COVID-19 vaccines,therapeutics and diagnostics.
Keywords Doha Round, TRIPS Agreement, Doha Development Agenda, International trade law,
TRIPS Flexibilities
Paper type Research paper
1. Introduction
The global scramble for COVID-19 vaccineand other related pharmaceutical products have
once again exposed the limitations of the Agreement on Trade-Related Aspects of
Intellectual Property Rights (“TRIPS”). High-income countries have so far claimed a lion’s
share of the available COVID-19 vaccine in total disregard of the consequences such
approach would have on the low-income countries that lack both the manufacturing
JITLP
20,3
166
Received3 March 2021
Revised21 July 2021
22August 2021
Accepted23 August 2021
Journalof International Trade
Lawand Policy
Vol.20 No. 3, 2021
pp. 166-183
© Emerald Publishing Limited
1477-0024
DOI 10.1108/JITLP-03-2021-0012
The current issue and full text archive of this journal is available on Emerald Insight at:
https://www.emerald.com/insight/1477-0024.htm
wherewithal and the financial resources to purchase the vaccine and other products needed
to combat the pandemic.
The COVID-19 pandemic comes on the heels of the ratificationof the formal Amendment
to TRIPS Agreement on 23 January 2017after years of negotiations. COVID-19 is, therefore,
the first global public health emergency facing World Trade Organization(WTO) members
after the ratification of the formal amendment. The amendment incorporated different
measures that have been put in place to reduce the adverse impact of the agreement on
developing countries to enablethem deal with health emergences (collectively referredto as
“TRIPS Flexibilities”). Specifically, the amendment seeks to facilitate access to cheap
pharmaceuticals in the form of “generic versions”of patented products through the
voluntary LicencingFacility.
However, despite this amendmentbeing currently in place and part of TRIPS, the reality
on the ground, with regard to dealing with the COVID-19 pandemic, shows a contrary
outlook. Developing countries are having difficulties in accessing the vaccine because of
“vaccine nationalism”perpetrated by countries that have the resources and control over
production of the vaccine. It is clear that the formal amendment and the rest of the
exemptions that are provided for under TRIPS for purposes of dealing with public health
emergencies such as COVID-19, have made little, if any difference, in facilitating equitable
access to COVID-19 pharmaceuticalsby low-income countries.
This paper finds that despite several measures being in place for the purposes of
facilitating equitable access to pharmaceutical products needed to deal with health
emergences in low-income countries, there are stillissues regarding the effectiveness of the
existing system. The waiver that was introduced through the 2003 Decision and later
incorporated in the formal amendmenthas not cut deep enough. The procedural framework
for voluntary licencing systemis considered to be cumbersome and therefore less appealing
to the intended end users of the system. It is observedthat the solutions required to deal with
COVID-19 involve wide-ranging intellectual property (IP) issues beyond patents, which
means that there is need for a comprehensivereview of the current IP regulatory landscape.
However, historically and generally,reviews of WTO instruments take time and time is the
luxury the world donot have in so far as combating COVID-19 is concerned.
As such, there is a need to find alternative stopgap solutions for purposes of facilitating
equitable access to COVID-19 pharmaceuticals. One of such solutions is the proposal by
India and South Africa concerning a temporary waiver of the provisions of TRIPS that
would ordinarily stand in the way of equitable access to COVID-19 pharmaceuticals.
Although this proposal has received mixed reactions within the WTO family, this paper
finds it to be a sensible and reasonable solution.However, in light of the said mixed reaction,
it is doubtful that the proposal will see the lightof day. Another solution is the proposal by
Abbott and Reichman on theestablishment of mandatory patent pools (Licencing Facilities)
and Regional Pharmaceutical Supply Centres (RPSCs) to facilitate pooled licencing and
procurement of COVID-19 pharmaceuticals. Although this proposal is considered to be a
viable and reasonableshort-to-medium-term solution, implementationof such arrangements
may require a bit more time. As such, this paper proposes that WTO members should use
already existing political and economic groupings, that they belong to, as vehicles for such
arrangements.
This research is non-empirical, desk-based research. It is, therefore, based on the
literature review of existing body of work that is relevant to the topic under discussion.
Mindful of the epistemological challenges that are always associated with desk-based
research, part of the methodology of this work is to seek support from related empirical
studies based on different philosophical underpinnings but that confirm the working
TRIPS
Agreement
under trial
(again)
167
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