Civil rights, Health, Inequality and Social Justice

The Temporary Waiver of Patents on Vaccines

Apr 22 2021

By Riccardo Petrella and Roberto Savio (*)

The appeal to the ’emperor’ of the world is a defeat of justice and the universal right to life  

It cannot be said often enough: the temporary waiver of the rules laid down in the 1995 WTO-TRIPS (Trade Related Aspects of Intellectual Property Rights) , in particular on private for-profit patents on vaccines would be an important result in the interests of the impoverished and marginalised populations of the world. It would not, however, be a step forward or a new political and social achievement.

The waiver is not a call for aid or solidarity. It is a request to apply the WTO treaties.

This is an important fact because it is very often forgotten. Temporary waiver does not imply any change in the rules. It is enshrined in the TRIPS treaties, Articles 30 and 31, which foresee a few forms of derogation of the rules.  Article 31 states that Member States may allow vaccines use by third parties (compulsory licence) or public use for non-commercial purposes (use by public authorities) without the authorisation of the patent holders. Contrary to the request of some states at the time of the approval of the treaties (the same states now opposing the provisional suspension), the agreement does not limit the grounds for such use. But it does lay down conditions that must be met to protect the interests of patent holders.

This must be clearly said. Temporary waiver remains a major political problem because the pharmaceutical and other biotechnology companies in the United States and the European Union, which own the vast majority of registered patents in the field of health, have always opposed and are still unwilling, even in the midst of a deadly global pandemic, to accept the application of exceptions that they consider contrary to their interests/profits. The 14 countries that oppose these exceptions, which are among the richest in the world (less than 15% of the population), are primarily defending the profits of “their” companies and the competitiveness of their economies. Apart from a few philanthropic gestures of aid and compassion towards the “poor”, they do not care about the rights to life of billions of people hic et nunc.

We recall, among other major conflicts, the doggedness with which 39 global pharmaceutical companies tried for years to have South Africa condemned by the WTO tribunal for having applied compulsory licences to AIDS vaccines. Compelled by world public opinion, disgusted by the immorality of the pharmaceutical companies, the 39 companies finally withdrew their complaint against South Africa on condition that South Africa be ordered to pay a symbolic dollar. The WTO tribunal obviously agreed with them. In other words, the companies obtained that the principle of the right to patents be safeguarded as one of the fundamental principles of regulation in the field of life and as taking priority over the right to life of human beings.The opposition to the suspension is “outlawed”, unacceptable, intolerable.

The petition

It is in the light of these considerations that we believe it is right and legitimate to question the scope and validity of the appeal addressed to US President Joe Biden on 15 April by more than 170 personalities from all over the world, including former heads of state and dozens of Nobel Prize winners, artists and sportsmen. The signatories ask him to intervene so that his country takes a position in favour of the provisional suspension of the pension, during the next WTO General Council.

The first question concerns the meaning of their approach.  Why is the appeal addressed – in the form of a petition close to a plea – to the president of the most powerful state on the planet, knowing that the United States has always maintained that international treaties are useful when they are not contrary to US interests?  Hence his refusal to sign 59 international treaties since World War II and to abandon others unilaterally just because they are accused of being hostile to the United States.

Why, with their appeal, did they openly accept that the universal right to health was conditional on the goodwill of the United States, thus accepting traditional American (“white” Americains) theses about the supposed exceptional nature of the United States’ role and functions in the world? Can realpolitik justify such a submission? On the contrary, they should have turned to the United States to denounce the intolerability of its arrogant and imperial position.  A sort of ‘collective j’accuse’ of ‘America First’ that prevents, as their stubborn defence of patents shows, the pursuit of a cooperative and just world health policy.

The second question concerns the role of science and technology in the future of the planet. We all know that even under Biden, as under Obama, Bush and Clinton, the United States clearly pursues, at all costs, the objective of maintaining, and even strengthening, its world leadership, especially in the technological and economic-financial fields. We also know that the unconcealed aggression of the United States against China, which is leading them to build an open war against China, including in the field of anti-Covid-19 vaccines, is dictated by the fear provoked by China’s increasing techno-scientific power.

Why did the signatories of the appeal turn to the United States, thus giving it a certificate of global good behaviour and feeding the idea in ‘western and westernised’ public opinion that salvation lies in ‘our’ science and technology, and ‘our’ wealth, under US leadership? Why didn’t they denounce to Biden, which is more justified and well documented, the role played by Big Pharma and powerful GAFAM in the current failure of health policy against Covid-19 with respect to the goal “no one will be left behind”? . Hundreds of millions of people have already been left behind in the last year by the domination of the financial and power interests of the large American and European global oligopolistic networks. Their financial wealth has increased since 2020 by hundreds of billions of dollars, while more than 100 million people have entered the world of the impoverished.

Finally, a question about the globalist culture of solidarity, humanity and democracy. Remaining within the framework of the rules established by the WTO, the appeal does not denounce the fact that the dominant countries impose the principle that in matters of intellectual property and health policy, WTO trade rules take precedence over the rules of the UN (which are almost non-existent in matters of intellectual property) and the World Health Organisation/UN (in matters of health).  The appeal accepts, de facto, that the logic of trade dominates over the logic of universal rights to life. The rights of force are more important than the force of rights.  Why did they not call for WHealthO to be given the responsibility -to coordinate health policy at the global level in place of WTradeO? No, this call certainly does not serve the cause of billions of human beings in the right way. 

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(*) Riccardo Petrella, UCL Professor Emeritus (B), Agora of the Earth’s inhabitants – Roberto Savio, founder and former president of Inter Press Service (IPS) and chairman of Other News.

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