TRIPS Waiver Proposal—State of Play and the Way Forward

New Frontiers in Sanskrit and Indic Knowledge (NFSI) 4th Edition

Working Group 3 (Arenas of New Knowledge Production and Indian Public Policy) and Working Group 4 (India as Vishwaguru—Indian Knowledge Systems and Preparing for The Global Future) hosted a panel discussion on the TRIPS waiver proposal as a leadup event to NFSI-4. The online event was held in collaboration with Third World Network, National Law University, Delhi and Inter-University Centre for IPR studies, on 18 December 2020 at 7:30 pm.

It was a great honour for Chinmaya Vishwavidyapeeth (CVV) to host Shri Mustaqeem De Gama who is the principal negotiator for the proposal representing South Africa, as one of the panellists. The other panellists were Dr. HU Yuan Qiong, Senior Legal and Policy Advisor, Médecins Sans Frontières Access Campaign (MSF, which is one of the leading international civil society organisations in the forefront of negotiations for the proposal) and Prof. Biswajith Dhar a senior economist and former Member of Board of Trade whose research has been vital in forming India’s economic policy. The opening remarks were made by Prof. Yogesh Pai (Assistant Professor, National Law University, Delhi). He also introduced the panel members to the audience. The panel was moderated by Shri K. M. Gopakumar, Legal Advisor and Senior Researcher at the Third World Network and Adjunct Faculty for Law and Policy, School of EGCS (CVV).


On 02 October 2020, India and South Africa tabled their temporary waiver proposal to the TRIPS Council. They cited Article IX (3) and (4) of Marrakesh Agreement of 1994 wherein for the exceptional circumstance (COVID-19) a request of the waiver shall be submitted to TRIPS Council and then it will be decided at the Ministerial Conference or the General Council. The two countries called for this temporary proviso for equitable access to COVID-19 vaccines, drugs, diagnostics. Though most of the developing countries have expressed their support for this proposal, the developed countries are opposing it or are not voicing their support. Currently, the proposal is in its discussion stage at WTO General Council and we could expect that the process will bring an optimistic solution to the world in early 2021 (90 days from the waiver proposal).

Shri Mustaqeem de Gama started the panel discussion and briefed the audience on South Africa’s challenges in the past with pharmaceutical companies on the high cost of HIV/AIDS drugs. He also stated that though they have COVAX facility, which is a global collaboration to accelerate development, it could cover less than 20% of the population. He expressed scepticism about the oral promises made by global pharmaceutical companies considering their experience during the H1N1 pandemic. But unlike that situation, this pandemic phase is exceptional wherein researchers, doctors, professors, universities came together along with public funding to develop the vaccine. This situation raises questions on the demand for the need for IP rights vouched by the developed countries because the global community has come together in making a vaccine. The biggest issue today for most of the developing countries is not the capacity for producing medicines but the ability to compete on pricing and competence in technology.

The waiver proposal is solidly built based on the international economic legal order which puts forward its concerns and asks for transparency with which fast-track approvals are made in developed countries. This waiver proposal also put forth the multilateral institutional bias that is against the development of developing countries. It also advocates for the values of inclusivity, global cooperation, global efficacy, and safety for everyone. De Gama concluded with the statement “No one is safe until everyone is safe”.

Dr. HU Yuan Qiong spoke on the arguments around the waiver proposal briefly. She ‘busted’ several myths about the proposal and, backed by facts, argued why this waiver is the need of the day. She stated that the mRNA technology deployed in COVID-19 vaccines are not new and decades of research are already in place. The biggest concern with pharmaceutical corporations is that the dosage regimens of the vaccines and targeted age groups are patented in many jurisdictions. She too stressed, like De Gama, that the COVID-19 vaccine was developed largely from public funding and that it is the governments who are absorbing the risks of distribution and delivery of the vaccines to its citizens. So, a monopoly-based model does not fit the current scenario and will not stand the test of the time. The myth surrounding this waiver from developed countries is that the developing countries lack capacity in production, distribution, and delivery of the vaccine. This blanket statement for opposing the waiver proposal is unacceptable because countries like India and China are already working on thermostable mRNA vaccines. For instance, the vaccine developed by Gennova Biopharmaceuticals Ltd. from India is a promising indigenous mRNA vaccine. So, ultimately the waiver proposal brings us a unique opportunity to take down all the barriers—structural, normative, political, and practical.

Prof. Biswajith Dhar brought about the need for this waiver proposal because of the failure of the Doha Declaration of 2001 which reaffirmed the TRIPS flexibilities. Ever since this declaration, we could witness ratcheting of IP laws in FTAs and bilateral agreements and countries have been forced to implement laws that are not strictly in line with the TRIPS agreement.

This waiver reminds the global community that there is an imperative in implementing the TRIPS agreement in a manner which makes the demand for access to medicines at affordable prices. Another serious concern is the rising vaccine nationalism around the globe. The Least Developed Countries (LDCs) will be the most hit amidst this situation in terms of accessibility of vaccines. The developed countries at this point of time should keep away their prejudices that the developing countries would fail to assimilate the vaccine technologies and therefore should forge cooperation at this tumultuous time in history to eradicate COVID-19.

The discussion was followed by a question-answer session after which Prof. Yogesh Pai summarised the panel discussion and also ended the session with the hope that a favourable decision will be taken on the waiver proposal which is currently undergoing multiple discussions at the WTO General Council.