COVID-19, MC12

MC12: New Trade and Health text comes amidst divisions over trade restrictions

With just one week to go until the start of the 12th WTO Ministerial Conference, a new text for a draft ministerial declaration entitled Covid-19 and beyond: Trade and Health has been circulated to members. Beyond the contentious and well-publicised issue of the TRIPS waiver for COVID-19 related medical products, WTO members disagree over language related to regulatory coherence and export controls.

This latest version, access to which is currently restricted, includes a placeholder at the front for whatever is agreed in the TRIPS Council on an IP waiver for covid-related vaccines and medical equipment.

Discussions on a revised proposal from South Africa and India for a temporary waiver from certain provisions of the TRIPS agreement for all “health products and technologies”, as well as an EU proposal highlighting the potential of voluntary and compulsory licensing, have been deadlocked for many months.

However, given there is “genuine intent to try and find a compromise,” according to a WTO official, members are expected to continue to negotiate right up until – and even during – MC12 in order to come to some form of agreement which will be presented to ministers at next week’s meeting.

All WTO members agree on the importance of enhancing access to safe and affordable medicines. Where they disagree is on whether a waiver is the most effective means to bring about added production.

TRIPS conversation less “combative”

The points of contention regarding the waiver proposal remain the scope – both in terms of products and the TRIPS measures which will be waived – the protection of undisclosed information, and the duration.

Regarding the latter, Pretoria and New Delhi’s proposal puts forward a duration of three years, after which it can only be ended by consensus at the General Council.

This is viewed by some members as being a de-facto permanent waiver, given the obvious difficulties of finding consensus at the multilateral level.

Although discussions on a waiver are reportedly “much less combative than in the past”, there is currently no sign of a breakthrough, and it may be for ministers at MC12 to find a way through the impasse.

The new text on health takes the form of a political declaration – and therefore neither alters members’ rights and obligations nor bans any practices.

The previous version , which had been signed by 28 members including China and the EU, outlined several actions which are designed to “facilitate trade in essential medical goods in these critical times and enhance the capacity of the trading system to deal with a public health emergency”.

In the earlier draft signatories pledged to “exercise utmost restraint” when it comes to export controls, make “best endeavours” to temporarily remove or reduce tariffs on essential goods, and share best practice on trade facilitation measures.

The latest version includes changes which make the text more streamlined, flesh out the action plan, and add more language related to food and economic security.

Some members object to the fact that the declaration and the TRIPS waiver are being discussed separately and believe that intellectual property should be an intrinsic element of the declaration.

Indeed, WTO Director-General Ngozi Okonjo-Iweala has herself said that it would be difficult to imagine a WTO response to the pandemic which does not include any provisions on intellectual property.

Other concerns raised by members on the declaration include the language on export restrictions, as well as sensitive topics such as regulatory coherence and tariffs.

The US, for example, which is not a signatory at the current time, is said to be reluctant to sign up to anything that would restrict its ability to supply medicines to its own citizens.

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