This post was originally published on the Verfassungsblog as part of our joint symposium on international pandemic lawmaking.
By Paul Ogendi
Tackling the question of how to address the needs for sharing scientific research, pooling technology, and know-how in diagnostics, therapeutics, and potential vaccines in future epidemics is fundamental to any pandemic treaty discussion. Moreover, we also need to consider how such a treaty might address potential conflicts with the Trade Related Intellectual Property Rights (TRIPS) agreement.
First of all, market-based solutions do not work in the context of global pandemics as has been demonstrated in the COVID-19 pandemic that is currently ravaging the world. Market-based solutions demand putting too much faith in the private sector, both in terms of capacity (supply chains, etc.) and in terms of equity. By relying on the private sector in the context of COVID-19, many countries are struggling to secure adequate personal protective equipment, testing kits, and more importantly life-saving vaccines.
Despite the World Health Organization (WHO) granting emergency use listing of various vaccines, almost all of the vaccination has happened mainly in developed nations. Developing countries continue to be marginalized and even the much acclaimed COVAX facility, which originally targeted vaccinations for at least 20% of the population of low and low-middle income countries by the end of 2021 has run into major challenges (WHO, 8 April 2021). Initially relying on supplies from India, the COVAX program has failed to meet its targets as a result of the Delta variant overrunning India’s “broken” health care system (Vox, 19 August 2021). Curiously, the Serum Institute of India had prior contractual obligations to ship “1 billion doses for low and middle-income countries” but failed to achieve high vaccination in India (Quartz, 26 April 2021). The result is that, as of August 6 in Africa, “less than 2% of the continent’s population is fully vaccinated” (BBC, 6 August 2021).
As a result of these failures in global institutions, other strategies had to be quickly put in place. For example, the African Union (AU)/African Vaccine Acquisition Trust (AVAT), COVAX, and United States Government collaboration which targets to vaccinate at least 60% of the African population (GAVI, 16 July 2021). Even this proposal may run into serious problems if the virus continues to mutate as it has done in the past.
Due to the failures described above, a radical paradigm shift is needed from a market-based paradigm to one that encourages more scientific collaboration transcending national, regional and global levels. All available knowledge and technologies should be made accessible so that all countries can learn from each other on how best to fight the pandemic. The current paradigm is not only inequitable but inefficient and therefore irrational since it prevents such an approach.
The new paradigm necessitates that the norms underpinning the market-based system should be suspended in the short term to last from the time a pandemic is declared up to the time some sort of normalcy is restored. The IP system is the main target here and specifically the removal of TRIPS Agreement barriers. This is the reasoning underpinning the request by India and South Africa in October 2021 for a temporary waiver of certain provisions of the TRIPs Agreement for three (3) years at the TRIPs Council (WTO, 25 May 2021). The counter-argument by the EU – the principal bloc opposing any waiver at all – “calls for limiting export restrictions, supporting the expansion of vaccine production, and facilitating the use of current compulsory licensing provisions in the TRIPS Agreement.” But in the midst of a global pandemic, this tinkering with the current market-based paradigm is unlikely to address any of the inefficiency failures above (WTO, 20 July 2021).
Using the 14 November 2001 Doha Declaration on Public Health and TRIPS Agreement, countries at WTO have already accepted that the TRIPS Agreement “does not and should not prevent members from taking measures to protect public health” (WTO, 20 November 2001). The same sort of language should be given a force of law through an international pandemic treaty so that any future conflict involving the TRIPS Agreement is avoided.
The next problem to be addressed in a pandemic treaty is the prevention of economic and political sanctions that may be imposed by some countries in retaliation in order to protect their IP. A good example is the US Special 301 list, which according to Medecins Sans Frontieres (MSF) “violates the integrity and legitimacy of the system of legal rights and flexibilities created by the TRIPS Agreement” (MSF, 30 April 2019).
Thus, the international instrument should envisage specific provisions that legally authorize countries to suspend IP rights in the context of global pandemics. An incentive system should therefore be encouraged through the creation of a Pandemic Fund. Countries or individuals that have contributed significantly to generation of knowledge and technologies should be fairly compensated from this fund by way of an application (KEI Europe, 24 February 2021). However, the release of the knowledge publicly should not be dependent on compensation.
Such a clear pandemic treaty provision may assist countries to resolve the current conundrum whether or not a solution is found at the WTO. In any event, the WTO should not have so much power to determine the fate of populations in the midst of global health pandemics. The WTO is a forum to support a regime of free trade and it is absurd to expect it to work towards protecting global health. The appropriate forum to guide decision-making on IP rights in a pandemic would be the WHO. There is a limit to what trade regulation can achieve in safeguarding public health.
In conclusion, my proposed provisions for any future treaty have three limbs. The first limb should reaffirm the rights of every country to take action in the context of global pandemics to protect their public health systems and save lives akin to what the Doha Declaration advocates for. It would therefore be prudent to entrench the Doha Declaration in the pandemic treaty to give it a force of law. The second limb should aim at preventing economic and political sanctions especially from developed countries, which have been the net exporters of technological know-how, by creating a Pandemic Fund. This is necessary because political and economic sanctions have a deterrent effect. The third limb should have a strong emphasis on technology cooperation/transfer/pooling/sharing so that available knowledge about a particular pandemic is freely accessible to all and cooperation is fostered. This will necessitate the creation of a Pandemic Knowledge Pool and Scientific Fora across the world.
Paul Ogendi is Lecturer at University of Nairobi, Faculty of Law, and Advocate of the High Court of Kenya.
