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