Why is the compromise reached at WTO regarding the Covid-19 vaccine manufacturing not a Trade Related Intellectual Property Rights (TRIPS) waiver? (2023, 10 Marks)
A waiver under Article IX of the Marrakesh Agreement suspends a treaty obligation for a period. What the Twelfth Ministerial Conference (MC12) adopted on 17 June 2022 was a Ministerial Decision on the TRIPS Agreement, which leaves the obligations standing and only eases an exception already inside them. That gap explains the verdict.
What was asked for
- India and South Africa proposed on 2 October 2020 that four sections of Part II of TRIPS be suspended: patents, copyright, industrial designs and undisclosed information (trade secrets and test data).
- It covered vaccines, therapeutics and diagnostics, applied to every member, and its May 2021 revision fixed a term of at least three years.
What was agreed
The text came out of a four-way bargain among the EU, the US, India and South Africa.
| Proposal (2020) | MC12 Decision (2022) | |
|---|---|---|
| Legal effect | Obligations suspended | Compulsory licensing under Article 31 clarified |
| Rights covered | Four IP categories | Patents only |
| Products | Vaccines, therapeutics, diagnostics | Vaccines only |
| Users | All members | Developing members; those with vaccine capacity urged to opt out (China did) |
| Term | At least three years | Five years (to June 2027) |
- The only element actually waived was Article 31(f), so a licensed producer could export most of its output to other eligible members.
- Conditions were added: steps against re-export, and adequate remuneration to the patent holder still applies.
- A decision on therapeutics and diagnostics was due within six months; it never came.
Why it falls short of a waiver
- Licence, not freedom. A producer still needs a government authorisation, product by product. The Article 31bis export route, built in 2003–05, was used only once (Canada to Rwanda, 2008).
- Know-how untouched. Vaccine production depends on trade secrets and technology transfer, which the decision does not reach: the right to make a vaccine is not the ability to make it.
- Too late. By mid-2022 the dose shortage had largely become a distribution problem.
- Structural reading. Susan K. Sell, in Private Power, Public Law (2003), showed that TRIPS itself was written under corporate lobbying. Industry opposed even this narrow text.
- The fight moved, unresolved. The WHO Pandemic Agreement (May 2025) leaves technology transfer voluntary and on mutually agreed terms, and its benefit-sharing annex was pushed back in May 2026 to 2027.
Conclusion
The MC12 outcome is a procedural clarification of compulsory licensing, not a suspension of rights. It restates the Doha Declaration (2001) flexibilities and adds one export easement. The South could set the agenda but not the terms, which made the episode a setback for global solidarity in an emergency.