Towards a New International Economic and Legal Order for Sustainable Development
A. Towards International legal reform: The TRIPS Waiver Proposal and Request for Extension of Transition Period by LDCs:
It is crystal clear that we need a bold new international order to make vaccines, treatments and medicines true global public goods, placing human life and health as priorities over profits. Also, the human being should be the central subject of every effort for sustainable development as a means for fulfilment of other human rights. In other words, there is a need to build a brand new international economic and legal order to materialize sustainable development worldwide.
Bangladesh and Chad among other Least Developed Countries are working towards a new bold international legal transition that will allow them to develop their own infrastructure, realize their development objectives and a viable technological base; and with the great leadership of India and South Africa the TRIPS Council has 90 days to decide on a waiver of TRIPS obligations in the context of COVID-19.
ElitSD.Org welcomes the waiver proposal submitted by India and South Africa to the TRIPS Council asking that it allow countries to suspend the protection of certain kinds of intellectual property (IP) related to the prevention, containment and treatment of COVID-19. The proposal requests that the Council for TRIPS urgently recommends to the General Council adoption of a decision of a waiver from the implementation, application and enforcement of sections 1,4,5 and 7 of part 2 of the TRIPS Agreement and until widespread vaccination is in place globally.
For India and South Africa: “it is important for WTO Members to work together to ensure that intellectual property rights such as patents, industrial designs, copyright and protection of undisclosed information do not create barriers to the timely access to affordable medical products including vaccines and medicines or to scaling-up of research, development, manufacturing and supply of medical products essential to combat COVID-19”. “There are several reports about intellectual property rights hindering or potentially hindering timely provisioning of affordable medical products to the patients.” (The highlight is ours).
In their communication, India and South Africa also made the point that: “many countries especially developing countries may face institutional and legal difficulties when using flexibilities available in the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement). A particular concern for countries with insufficient or no manufacturing capacity are the requirements of Article 31bis and consequently the cumbersome and lengthy process for the import and export of pharmaceutical products”.
Despite opposition from developed countries, the proposal was also co-sponsored by Eswatini and Kenya, the African Group (Tanzania), the LDC Group (Chad), Argentina, Bangladesh, Egypt, Honduras, Indonesia, Mali, Mauritius, Mozambique, Nepal, Nicaragua, Pakistan, Sri Lanka and Venezuela supported the proposal, also the Director-General of the WHO expressed support for the proposal. The proposal was also welcomed in principle by Chile, China, Colombia, Costa Rica, Ecuador, El Salvador, Jamaica, Nigeria, the Philippines, Thailand and Turkey.
This is important specially since no IP holder has endorsed so far the COVID-19 Technology Access Pool (C-TAP) which promotes the idea that voluntary licences are the most viable solution to tackle COVID-19. So, the TRIPS Council decision becomes crucial in order to respond quickly with effective means to find a solution to this pandemic of international scope. There is no reasonable justification for developed countries and relevant IP holders not to endorse the proposal, especially when we take a closer look to the number of deaths worldwide is currently: 1,214,809 and rising as you read this article.
All countries should implement C-TAP now. How many more people must die because they lack an effective vaccine, treatment or medicine for COVID-19? TRIPS should be waived now, what are they waiting for?
B. Request by LDCs Members for Extension of Transition Period:
Chad on behalf of the LDC members of the WTO submitted a request (IP/C/W/668) to the TRIPS Council proposing an extension of the transition period available to LDCs under Article 66.1 of the TRIPS Agreement, during which the LDC members of the WTO do not have to implement the substantive obligations for protection and enforcement of IP as required under TRIPS:
“Developing a viable technological base is a long-term process. LDCs need a continuing exemption from the Agreement on Trade-Related Aspects of Intellectual Property Rights ("TRIPS Agreement") in order to be able to grow economically viable industrial and technological sectors, to consolidate capacity, and to work their way up the technological value chain. To overcome the difficulties confronting LDCs, magnified manifold by the COVID-19 crisis, LDCs need maximum policy space inter alia to access various technologies, educational resources, and other tools necessary for development and to curb the spread of COVID-19 pandemic. Most intellectual property (IP)-protected commodities are simply priced beyond the purchasing power of least developed countries”.
Countries with developed economies should be aware that developing a viable technological base it’s a long term process. The USA and European counties for instance had to wait for centuries to develop their own infrastructure and local industry before they were able to apply strong protection to foreign intellectual property. In other words, there is no coherence in the argument of liberalization and opening up of markets to foreign competition and protection of foreign Intellectual Property of metropole countries in the context of a pandemic of international scope because even those countries (most industrialized countries today) at their own stage of development did not apply a policy of strong protection to foreign IP under “normal circumstances”.
Rather than sympathy and more delay, what LDCs desperately need is real international cooperation and solidarity to develop their own technological base and to be able to compete evenly in the international markets; otherwise, they can hardly “graduate” and develop their own economies. But, you might be wondering, how can they create viable technological bases or industrialize their economy and exit the so- called, “peripheral economy trap” with current IP agreements, economic policy, trade and Investment laws? We shall create and develop a fairer international economic order that will allow them to grow, prosper and become truly independent. This is a win- win situation for all the counties in the world.
It is questionable that the TRIPS Council will take more time to evaluate this proposal while the US consult their capital; every day that passes without a solution, many people die waiting for a vaccine, medicine or treatment. On the other hand, there is a need to eradicate poverty, growing inequality and unemployment; in other words, a brand new international economic and legal order to materialize sustainable development worldwide is needed, placing people and the environment at the centre of every decision.
Finally, LDCs would be better off adopting less protection to foreign IPRs and developing and fostering their own industry as developed countries did in their own stage of development. Let us hope the waiver proposal will pass before the end of 2020 and that LDCs receive a positive answer to their valid request before too many people test positive for COVID- 19.