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India risks being left out of TRIPS waiver

Prabhash Ranjan writes: Aside from being a failure of Indian diplomacy, exclusion would show that positions taken internationally must be backed by concrete action on the domestic front.

At a Covid-19 vaccination centre in Daryaganj, Old Delhi. (Express Photo: Abhinav Saha)

While the developed world is rolling out booster doses for Covid-19, barely 11 per cent of Africans have been fully vaccinated. This statistic reveals the magnitude of global inequality that poses an existential threat to global capitalism, as Thomas Piketty warned. When the Covid-19 pandemic pounded the globe, India, with South Africa, piloted a proposal to waive key provisions of the Trade-Related Aspects of Intellectual Property Rights (TRIPS) agreement on Covid-19 vaccines, drugs, therapeutics, and related technologies.

The TRIPS agreement is part of the international legal order on trade enshrined in the World Trade Organization (WTO). The core idea behind the proposal is that intellectual property (IP) rights such as patents should not become a barrier in scaling up the production of medical products like vaccines, diagnostics and therapeutics essential to combat Covid-19. The WTO had a golden opportunity to accept this proposal and send out a loud message that it prioritised the right to health over the supranormal profits of pharmaceutical corporations. This would have enabled the WTO to keep itself from becoming irrelevant. It would have also allowed global capitalism to present a human face and demonstrate its adaptability to changing circumstances. Instead, the WTO floundered and has failed to adopt a TRIPS waiver to date. Now, we hear, that the developed world is talking of a TRIPS waiver that would be geographically limited and exclude India. There are also attempts at limiting the waiver to vaccines alone, leaving out diagnostics and therapeutics.

It is a pity that India, which has been at the forefront of fighting for the TRIPS waiver, is at risk of being edged out. This is a failure of India’s economic diplomacy. However, it would be inappropriate to lay all the blame at the door of Indian diplomacy. Several failures domestically have undesirably impacted India’s global campaign. First, during the entire pandemic, India rarely made use of the existing flexibilities under the Indian Patent Act, such as compulsory licences (CL), which are consistent with the TRIPS agreement, to increase the supply of Covid-19 medical products despite being nudged by the judiciary to do so. On the contrary, during the peak of the second Covid wave in May last year, the central government filed an affidavit in the Supreme Court stating that the main constraint in boosting the production of key drugs is the unavailability of raw materials, not IP-related legal hurdles. This stand completely contradicted India’s argument internationally that views IP as an obstacle to augmenting the supply of Covid-19 medical products.

Second, India did not proactively develop a national strategy to implement the TRIPS waiver as and when it is adopted. In other words, a TRIPS waiver at the WTO would only be an enabling framework. It would then require member countries to amend their domestic IP laws to implement the waiver. India, as a country leading the TRIPS waiver battle internationally, should have developed a draft model law enunciating how it would implement the waiver. This would have not only fortified India’s position internationally but would have also acted as a pressure point to influence the negotiations.

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Third, the government failed to get the Indian pharmaceutical industry on board. Pharmaceutical bodies are a divided lot with many Indian companies speaking against the waiver, thus denting India’s global campaign.

Fourth, India is one of the few countries that has successfully developed a fully indigenous Covid-19 vaccine, Covaxin — a remarkable achievement. Given the involvement of taxpayers’ money in developing the vaccine, India should have unlocked its technical know-how to the world. While technology transfer agreements for Covaxin have been inked with domestic companies, making the vaccine technology available to anyone interested globally, at a minimal price, would have exhibited India’s resolve to walk the talk on the TRIPS waiver. It would have also shamed the developed world.

Western diplomats, it seems, have keenly followed India’s internal actions and have found out about this duplicity. While India would oppose the attempted exclusion, the lesson is that for economic diplomacy to flourish, it should be backed by concrete actions on the domestic front.

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This column first appeared in the print edition on February 23, 2022 under the title ‘WTO Trips’. The writer is a professor and vice dean, Jindal Global Law School, O P Jindal Global University. Views are personal,

First published on: 23-02-2022 at 03:40:56 am
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