Can the WTO meeting finally deliver a TRIPS deal?

After more than 20 months of debate, the World Trade Organization is only days away from a self-imposed deadline to reach consensus on an agreement to waive at least some intellectual property protections in response to the COVID-19 pandemic.

Director-General Ngozi Okonjo-Iweala has been pressing members to strike a deal on some version of a waiver by the end of the organization’s four-day ministerial conference, which begins Sunday. The meeting, delayed two years by the pandemic, is WTO’s highest event.

And the drama inside the staid institution is building. Okonjo-Iweala has called on members to lock themselves into weekend negotiations. And updated versions of a waiver continue to leak, revealing the struggle to identify even a narrow agreement.

The real question, which could be answered by the close of the conference, is whether such a deal even exists.

Lansana Gberie, the ambassador from Sierra Leone, who is overseeing the current debate, is “cautiously optimistic” it does, telling reporters Tuesday a text could be “ready for adoption by ministers in time for the coming weekend.”

The South African and Indian delegations first raised the issue of a waiver in October 2020, when they tabled a proposal that would have temporarily waived a range of intellectual property protections, including patents, trade secrets, and copyrights, on COVID-19 vaccines, treatments and tests. Known as the TRIPS waiver, it gained support from more than 100 countries and the opposition of the United Kingdom, Switzerland, Germany, and other nations allied to the pharmaceutical industry.

In the consensus-based WTO, that was enough to drag debate to a standstill.

The original TRIPS waiver has been supplanted by a draft brokered at the urging of Okonjo-Iweala by a quad of members – the United States, the European Union, India, and South Africa – that was leaked in March. That version reflects the U.S. demand that any waiver be limited only to vaccines, while also restricting it only to patents, which appears to be a requirement of the EU.

The draft also introduces necessity tests to determine who can take advantage of the waiver and new restrictions that go beyond the current WTO rules for issuing a compulsory license, which allows countries to temporarily ignore some IP protections in an emergency.

The quad’s “outcome document” infuriated supporters of the original TRIPS waiver, even as its original authors have kept it at arm's length, leaving WTO members in the curious position of now negotiating over a text that no one outside the EU really claims. In a hearing last month of the European Parliament’s Committee on Trade, the European Commission’s Trade Commissioner Valdis Dombrovskis described the agreement as an “orphaned” text, without the public support of all of the negotiating countries. While he called it the “most promising path toward achieving an outcome by all member states,” the other members of the quad have not echoed that position.

Nevertheless, talks have been taking place in earnest, spurred on by Okonjo-Iweala, who is eager to disprove critics’ preemptive warning that the upcoming conference could end in failure. Last month, she even took to the floor following discussions to ask members if they wanted to be seen as part of a failed organization, according to a Geneva-based trade official.

The leaked working documents, which are littered with provisional language, do not seem to show members moving closer to an agreement, though. Instead, they seem to indicate that nearly every aspect of the waiver is still up for discussion.

One restriction that would have required countries to list every patent they intended to waive – a nearly impossible requirement given the byzantine nature of patent registration – appears to have been removed. At the same time, the U.K. government has attempted to further restrict the waiver only to finished products and not the ingredients and tools needed to produce COVID-19 vaccines, according to Fatima Hassan, the founder of Health Justice Initiative.

Members have also been bogged down by discussions about whether there should be a mention of remuneration, the length of the waiver and which countries it covers, with the U.S. and others specifically pushing for text that would render China ineligible. Beijing has offered to voluntarily opt out of benefiting from the waiver but is unwilling to accept being officially prohibited.

“As a precedent, that can be quite alarming, which is probably why China is pushing back quite hard on this,” Thiru Balasubramaniam, the Geneva representative for Knowledge Ecology International, told Devex.

Even the format of the negotiations, which have relied on a mixture of meetings of small groups of delegates to guide negotiations that are then relayed back to the broader TRIPS Council, has been controversial. Balasubramaniam questioned the extent to which countries from the global south were being fairly represented in those negotiations.

“In terms of the politics of power, it’s important to look at the process, as well,” he said.

Peter Ungphakorn, a former official with the WTO Secretariat, said this is the normal shape of discussions within WTO, writing to Devex that “really difficult issues can only be sorted out in small groups and sometimes bilaterally.” What is critical, he said, is keeping communications open with the rest of the membership, who will “need time to study and discuss whatever the small groups are doing.”

That time is disappearing quickly.

The rush to reach an agreement by next week elides the broader question hanging over these talks about whether any outcome beyond the current stalemate is possible in the consensus-based WTO.

Access advocates are holding fast to the original version of the TRIPS waiver, arguing that anything less fails to meet the needs of the moment. They are pressing their governments not to accept an agreement merely for the sake of it or to shore up the legitimacy of WTO. And civil society groups will be out in force in Geneva, the site of the ministerial, and elsewhere to remind officials of their position.

“What is needed today is a clear, unambiguous TRIPS waiver,” Winnie Byanyima, the head of UNAIDS, said during a recent press conference organized by the People’s Vaccine Alliance. “No new barriers or hurdles.”

South African President Cyril Ramaphosa appears to be listening, calling as recently as last month for a TRIPS waiver that included vaccines, therapeutics, and diagnostics.

At the same time, delegations that include the U.K. and Swiss continue to question the need for a waiver at all. Behind those queries is the threat they could just walk away from the discussions.

If there is a point of overlap that both sides will accept, it has yet to emerge.

“It looks kind of gloomy,” Balasubramaniam said. “I’m not sure what kind of last-minute heroics they can achieve, but we’ll see.”