As of: March 2, 2024, 5:17 p.m
From: Foreign Policy
Comments
Press
Split
The WTO should not have jurisdiction over technology and intellectual property during a pandemic.
The Covid pandemic has shown this.
The WTO has failed to effectively release patent rights to the Covid-19 vaccine
Due to poor WTO coordination during the coronavirus pandemic, developing countries were left behind
Institutional and ideological obstacles in the WTO prevented exemptions during the pandemic
This article is available for the first time in German - it was first published by
Foreign Policy
magazine on February 28, 2024 .
This month, the World Trade Organization threw in the towel on COVID-19.
Drugs like paxlovid were plentiful in the United States and Europe, but few people in Africa, Asia, and Latin America had access to them due to insufficient supplies and high prices.
After more than three years of debate, the WTO said on February 13 that it had been unable to reach an agreement on lifting global patent rules on COVID-19 treatment.
The path to expanded, cheap production remains blocked.
WTO coordination during the Covid pandemic more bad than good
Anyone wondering why the WTO is still debating COVID-19 almost a year after the World Health Organization declared a public health emergency can guess.
Bureaucracy and a snail's pace, it seems, is the WTO's motto.
In a world of multiple crises, precision and the ability to act are required.
The WTO dilemma raises the question of how relevant the World Trade Organization still is.
It also becomes clear that responsibility for global governance of pandemic-related technology and intellectual property cannot remain with the WTO.
Ngozi Okonjo-Iweala is Director General of the WTO.
© IMAGO/Xinhua
WHO must play a more important role in future pandemics
As negotiations on a new pandemic treaty resumed in Geneva this week, the question is which organizations should manage coordination in a pandemic.
Some negotiators are pushing for world health ministers and the World Health Organization (WHO) to play a role in intellectual property.
In contrast, U.S. negotiators believe these issues should remain at the WTO.
However, the WTO's failures are making this position increasingly untenable: if the WTO is unable to remove patent barriers and promote technology sharing in the event of a pandemic so that the world can produce enough medicines and vaccines, chaos is inevitable.
The WHO must remedy this and be empowered to lift barriers.
“Forum shift” due to new WTO rules
When the World Trade Organization was founded in 1995, it marked a fundamental change in international trade law.
While the international system it replaced had been concerned primarily with the movement of goods across borders, WTO rules expanded the definition of “trade” to include intangible goods – including patents on medicines.
All members were required to enforce a 20-year monopoly on the production of new drugs.
As the late scholar Susan Sell described it, this was a remarkable act of “forum shifting.”
My news
Russian super jet spotted over Ukraine – will the Su-57 now be used?read
“NATO will go to war with Russia”: Lavrov mocks leaked “plans” read
1 hour ago
Wiretapping scandal in the Bundeswehr: Ministry gives new details about the Taurus recording
New asylum rule: In future, dental treatment will only be possible after three years - exception for Ukrainians
For attack on Russia: Finland advises Ukraine to use Western weapons – read “Completely legitimate”.
Ukraine commando falls into Russian ambush – serious setback on the southern front read
“Technology transfer” should also benefit poor countries in a pandemic
Before this, patents (effectively government-granted monopolies) were not part of “free” trade.
Until the 1970s, many rich countries such as Italy and Japan did not allow patents on medicines, and many developing countries such as India, Brazil and Mexico had excluded medicines from patent monopolies until the 1990s.
However, they were persuaded to join the WTO fully.
It was promised that intellectual property in the new WTO agreement would also benefit developing countries through “technology transfer”.
There was also a demand that rich countries encourage their companies to share their products with the least developed countries.
This promise was not kept.
The headquarters of the World Trade Organization (WTO) in Geneva.
© FABRICE COFFRINI
The example of AIDS shows that pandemics and patents are a matter of life and death
The first effective drugs against the AIDS pandemic arrived just as the WTO was being created.
It quickly became clear that this debate over globally enforceable intellectual property was a matter of life and death, as patents proved to be a major barrier to access to medicines.
Between 1997 and 2007, 12 million Africans died because AIDS drugs were too expensive and pharmaceutical companies blocked affordable generic versions.
Eventually, manufacturers in India, Brazil, South Africa and elsewhere overcame the obstacles and produced the drugs at a 99 percent lower cost.
Today, 30 million people are receiving treatment, and the latest medications cost less than $50 a year.
Flexibility to let poorer countries produce generics of the vaccines
Did the drug manufacturers give in voluntarily?
Unfortunately no.
Dozens of governments in low- and middle-income countries issued “compulsory licenses,” forcing drugmakers to allow HIV drug production locally.
Activists pressured companies to lower their prices and share their technology.
The WTO eventually agreed on the “Doha Declaration,” which clarified WTO rules and granted countries “flexibility” in producing affordable medicines and special consideration in emergencies.
It took more than a decade, but the Medicines Patent Pool was finally created to facilitate voluntary technology sharing - even if companies only joined the pool because the mandatory alternatives left them little choice.
Failure of the promised technology transfer during the pandemic
When the pandemic struck, all of these structures were available for technology transfer, but leaders decided to use only the voluntary elements - an approach that failed spectacularly.
Scientists delivered vaccines in record time.
Highly effective mRNA vaccines were developed in less than a year and treatments followed.
Paxlovid proved to be one of the most effective drugs - a long-known HIV drug in combination with a new, antiretroviral HIV drug with a similar active ingredient.
Costa Rica and the WHO proposed a mechanism to share technologies and patents even before drugs were developed and approved.
More than 100 different drug and vaccine manufacturers around the world were willing to do so, with some even demonstrating that they could reverse engineer mRNA vaccines.
But no drugmaker was willing to share its technology, and none of the governments in which the companies were based forced them to do so.
Rich countries secured the vaccine first - poor countries took a step back
There was neither a relaxation of the WTO rules nor a sufficiently voluntary transfer of patents.
Factories in Africa, Asia and Latin America were unable to expand their offerings.
World leaders only supported a series of voluntary measures for low- and middle-income countries (LMIC).
COVAX, the international initiative to procure and fairly distribute vaccines, sought to obtain vaccines from companies such as Pfizer and Moderna.
But COVAX quickly discovered that high-income countries were blocking global supplies by using their economic and political power and securing preferential access to the companies.
At the end of the first year, less than 1 percent of all vaccines had been delivered to low-income countries.
Things didn't look any better when it came to medicines.
An analysis found that the need for paxlovid exceeded the supply in LMICs by 8 million doses, leaving 90 percent without access.
The lowest reported price was $250 - 200 percent of the average per capita spending on total health in low- to middle-income countries.
Foreign Policy Logo © ForeignPolicy.com
Many deaths from the pandemic could have been avoided
These bottlenecks had consequences.
Analysis shows that the pandemic has claimed up to 27 million lives, many of which could have been avoided.
Beyond the direct impact, dangerous variants of the coronavirus spread around the world as transmission was high and immunity was low.
The pandemic lasted longer and caused greater damage because the global supply of countermeasures was artificially limited.
During this time the WTO was embroiled in debate.
South Africa and India proposed temporarily exempting all COVID-19 products from WTO rules during the pandemic.
Drug industry lobbyists thought this was a dangerous idea and launched a campaign against it, claiming that revoking patents would undermine innovation in pandemic products.
In reality, an exemption does not waive intellectual property rights.
Voluntary and temporary suspension of patent rights during pandemics
It simply suspends global rules and leaves it up to national governments to decide whether to enforce patents on pandemic products during the pandemic without facing sanctions under the WTO.
An exception regulation alone could not have solved the problem of pandemic supplies, as this would also have required the exchange of know-how and the expansion of production.
But it would have exempted companies making financial and infrastructure investments in production lines from the threat of lawsuits.
Governments of poor countries that allow local production would also have been protected from sanctions by powerful countries.
The WTO should be able to use mechanisms such as waivers to respond to crises in weeks, not years.
The Marrakesh Agreement explicitly contains a provision for derogations.
The General Council of the WTO must decide on a request for exemptions within 90 days, assuming consensus but a three-quarters majority of members voting.
Institutional and ideological obstacles stalled the WTO during the pandemic
Every year, numerous exemptions are granted in the WTO on issues such as pharmaceuticals, diamonds or trade preferences for neighboring countries.
But since 2020, the WTO's efforts to adopt an exemption in the midst of a world-changing event have encountered institutional and ideological obstacles.
Even as world leaders spoke out and much of the global economy depended on coronavirus containment, the institutional structure encouraged gridlock.
Despite seemingly supportive laws, the structures of the WTO encourage narrow interest group politics.
These structures excluded actors with a broader public interest and an economic agenda.
A laboratory technician prepares nasal swabs for a test to detect coronavirus in a pathology laboratory.
Photo: Brian Inganga/AP/dpa © Brian Inganga
Negotiators focused on intellectual property framed the COVID-19 issue in a way that isolated the negotiators.
There has been a focus on footnotes and entitlement rather than stopping the pandemic.
Trade negotiators from a few states with strong pharmaceutical lobbies were given an effective veto.
By the 12th WTO Ministerial Conference in June 2022, the simple pandemic exemption proposed two years earlier had evolved into a complicated mechanism that several developing countries declared unworkable.
The exemption only applied to vaccines, requiring separate negotiations on treatments.
Eight months of further negotiations failed to produce progress, with the WTO declaring last week that it had not reached an agreement.
A new agreement aims to prepare the WTO for a future pandemic
It's time for a new forum.
Negotiations on a new pandemic treaty are intensifying, with negotiators hoping for a deal in May.
The draft agreement includes a commitment to waive intellectual property rights during a pandemic and to use WTO flexibilities to produce pandemic-fighting products.
These are the minimum measures to make the whole world safer.
President Joe Biden has already advocated for patent waivers during the pandemic and is using these flexibilities at home, including the "right of entry" to limit patent monopolies on high-priced drugs in the United States.
But the agreement should go further.
Given the repeated failures of the WTO, the new agreement must give the World Health Assembly the power to waive patent rules.
And it should include a binding agreement to share publicly funded technologies for global production.
States have delegated their powers to the WTO, which has proven more of a hindrance than an advantage during pandemics.
Taking back this power is simply good governance.
Matthew M. Kavanagh, PhD, is director of the Center for Global Health Policy and Politics at Georgetown University's O'Neill Institute and School of Health, as well as assistant professor of global health and visiting professor of law.
To the author
Matthew M. Kavanagh
, PhD, is director of the Center for Global Health Policy and Politics at Georgetown University's O'Neill Institute and School of Health, as well as assistant professor of global health and visiting professor of law.
We are currently testing machine translations. This article was automatically translated from English into German.
This article was first published in English in the magazine “ForeignPolicy.com” on February 28, 2024 - as part of a cooperation, it is now also available in translation to readers of the IPPEN.MEDIA portals.