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A few months into the coronavirus pandemic, India and South Africa jointly petitioned the World Trade Organization for a global intellectual-property waiver to allow countries to produce COVID-19 vaccines, treatments, and medicines, without fear of legal action, until herd immunity was achieved worldwide. More than 100 other nations endorsed the proposal, along with 140 former heads of state, a number of Nobel Laureates, and the pope.
After nearly two years of deliberations, last month the WTO finally agreed on a version of this proposal. Headlines have focused on the fact that a deal was reached on a so-called Trade-Related Aspects of Intellectual Property (TRIPS) waiver, allowing developing countries to more easily use patented technology to develop COVID-19 vaccines, ostensibly a landmark step toward ending the pandemic.
This is not a success story, however. If anything, it illustrates the injustice baked into the global health structure. The deal comes too late in the pandemic, falls short on a number of counts, and will have a limited impact on bringing about an end to the world’s coronavirus nightmare. What has been passed has little resemblance to what was proposed.
When India and South Africa initially submitted their proposal, vaccines were still under development; a quick agreement would have meant that countries could ready their manufacturing capacity and spring into action as soon as doses were approved. But the negotiations were sluggish at best and certainly did not reflect the urgency of the crisis. While the WTO was considering the move, for example, my home country, India, was hit by a deadly second wave that killed as many as 2.7 million people from April through July 2021. (The Indian government maintains that the death toll from the entirety of the pandemic is far lower, at about 500,000 overall.) Around the world, some 6.3 million lives were lost to a vaccine-preventable illness by the end of 2021, though estimates range as high as 14.9 million. How many lives might have been saved had an agreement come sooner?
Perhaps the delay could have been justified if the ultimate deal had been broader, or had set a precedent so that nations wouldn’t have to engage in similarly drawn-out negotiations the next time there’s a global health emergency. Instead, it’s quite narrow.
The new deal does allow nations to use a patent related to vaccine technology without the consent of the right holder, but only for vaccines and only for a period of five years. It excludes intellectual-property waivers on medical tools, such as diagnostics, and on any treatments. (The WTO will, in theory, address the issue of treatments and tests in six months, but delegates I spoke with from poor nations have little expectation that the deadline will be met.) Even on the issue of vaccines, the deal does not waive protections on the use of trade secrets or industrial designs, crucial know-how that is required to allow generic pharmaceutical manufacturers—once patent hurdles are removed—to start making more complicated concoctions, such as the mRNA vaccines that have been deployed so successfully in the rich world.
It also excludes countries with “existing” production capacity by encouraging them to make “a binding commitment not to avail themselves” of the agreement. And one Indian delegate to the negotiations—who, like others I interviewed for this article, spoke on condition of anonymity to freely discuss the deliberations—told me that the WTO, by issuing only a five-year waiver, has made it unlikely that pharmaceutical companies in developing countries will have a long-term incentive to ramp up vaccine manufacturing.
The talks themselves, meanwhile, illustrated the power imbalance at play. Delegates whom I interviewed said that as talks dragged on from December 2021 to March 2022 among the so-called Quad group—the United States, the European Union, India, and South Africa—the WTO did not distribute the full text to member nations, and instead projected only the specific language being negotiated on a screen, making it difficult to see the whole picture. The text that became the final deal was officially proposed after several developing countries taking part in the talks, notably including India and South Africa, refused to sponsor it in protest over the watering-down of the original draft. Once this text was put up for formal debate, several prominent countries were not party to the “green-room meetings,” smaller gatherings involving the U.S., the EU, Britain, and Switzerland, in which much of the negotiations took place. India and South Africa participated, as proposers of the waiver, but other developing countries were excluded, except in narrow instances where they were allowed to make the case for their own amendments. Delegates from both India and South Africa told me that the opaque negotiating process and arbitrary rules about who got invited to meetings undermined efforts to collectively bargain over concerns that the developing nations shared. Though the WTO, as a multilateral organization, has the option to put heated subjects to a vote of its 165 members, it has not used this option before.
The WTO spokesperson Daniel Pruzin declined to comment directly on the specific claims made, or on the content of confidential discussions that WTO officials had had with member states. In an emailed response to my questions, he said that “the WTO works on the principle of consensus,” and the TRIPS waiver agreed last month “was adopted by consensus … thus reflecting a decision of the membership as a whole.” He added that “meetings were held with different configurations of members at different points,” including ones that involved “members representing a broad range of regional groupings.” He added: “The fact that the Ministerial Decision was welcomed by many members, including the Quad, is testament to the broad support the decision has received and recognition that it will play an important role in contributing to vaccine equity and availability.” Pruzin also noted that the full text of the proposal was distributed on May 3.
Ultimately, many countries’ delegates learned of updates to the proposed text thanks to leaked documents—one in September 2021, and another in March 2022—both of which sparked outrage because the deal would exclude diagnostics and drugs, and would restrict the ability of countries with surplus capacity to export unused vaccines. The Indian online outlet The Wire reported last month that after the second leak, the former UN Secretary-General Ban Ki-moon urged India’s and South Africa’s leaders to reject the text because of how little it offered to the developing world. (Neither did so.)
The deal amounted to a bargain struck between lions and lambs, not simply because of what was finally agreed but because of the circumstances in which these decisions were made. One activist equated the experience to negotiating with one hand tied behind their back and a blindfold on.
The deal’s shortcomings are evident in how little has changed since it was signed in mid-June: Not a single nation has made use of it by issuing so-called compulsory licenses or executive orders revoking patents. The deal has, so far, had no impact on ending the pandemic. We in the developing world will be waiting for drugs, diagnostics, and a new generation of vaccines for a long time. Richer countries have held onto their monopoly of supply, manufacturing, and knowledge. Any pretense of solidarity among nations and peoples has been stripped away.
Richer countries, which so often trumpet the idea of “growing the pie” when it comes to seeking access to new markets, viewed the TRIPS negotiations as a zero-sum game, one in which they lost if the rest of us gained. This is not simply immoral but illogical and against their own interest: The longer the pandemic persists in poorer countries, the greater the risk of it rebounding on richer ones as variants proliferate.
In April 2020, India reversed a ban on the export of the antimalarial drug hydroxychloroquine after Donald Trump called it a “game changer” in the battle against the coronavirus, despite no evidence of it having an effect on those with COVID-19. He threatened “retaliation” against India if it did not release its stocks of the drug, which are much needed in a country where malaria is still a significant problem. New Delhi had little choice but to relent. Separately, in November 2021, South Africa identified and was quick to report a new coronavirus variant, yet its reward was a travel ban on its citizens.
When taken together, these episodes—Trump’s demands, travel bans, and the later WTO negotiations—are illuminating. An American president was free to bully a supposed ally, India, trampling over the needs of its people, yet poorer countries are threatened with lawsuits if they seek to prioritize the needs of theirs by overriding intellectual-property restrictions. When the threat is to the Western world, resources are marshaled at enormous scale and with remarkable urgency. When a poorer country shares much-needed information about new developments in the pandemic, its people are made pariahs. And while developing countries burn, negotiations take 20 months.
Concentrating supplies during an infectious-disease pandemic is equivalent to relying on a single well for water when a city is on fire. Yet from early on in the negotiations, richer countries and their supporters argued in favor of the material superiority of the West when it came to manufacturing vaccines. In March 2022, Moderna’s chief executive, Stéphane Bancel, compared open-source production of jabs to creating a “copy of a Louis Vuitton bag.” Implicit in his statement was the belief that centering vaccine-supply lines in the developing world was an inferior option.
When the text was finalized, more than 200 humanitarian organizations, including Doctors Without Borders, recommended that countries should, essentially, ignore it and use any legal wiggle room possible to avoid the enforcement of patent regulations. One vaccine-advocacy group argued that the Biden administration specifically should refrain from using the WTO’s trade-dispute mechanisms against developing nations that might seek to revoke patents in order to produce pandemic-fighting medicines and treatments.
These suggestions point to the bind that poorer countries find themselves in. Rather than being able to actively build their own capacity, they are coerced into deals that keep them passively dependent on richer countries for donations.
This gulf—of a type that the writer Harriet Washington has described as “medical apartheid,” and what World Health Organization Director-General Tedros Adhanom Ghebreyesus has called “vaccine apartheid”—is not new. Early in the HIV epidemic, African nations, particularly South Africa, were brought to their knees because they were among the last places to receive access to antiretrovirals, and even when they did, the medicines were prohibitively expensive. Later in the 1990s, Indian-made generic drugs finally rendered these more affordable, decisively turning the tide of HIV/AIDS infections in developing countries, where the need was greatest. India and South Africa’s experiences helped them predict the crisis they would later face when it came to the coronavirus.
From the point of view of the developing world, it has been disappointing to see that institutions such as the WHO and the WTO have ignored the lessons of health crises past. By moving from disease to disease and dealing with narrow causes instead of addressing problems at their structural roots, global health leaders, pharmaceutical companies, and politicians have brought about this disparity.
Time and again—whether it be over tuberculosis or HIV/AIDS—the powerful were comfortable sacrificing Black and brown lives at the altar of shareholder primacy. It is a pattern I have studied in my nearly 20 years as a health-care journalist, and one that was unbroken with the coronavirus pandemic.
If there is a positive to be taken from this experience, it is that this power imbalance has finally been exposed for what it is. Poorer countries may have had to settle for a watered-down deal nearly two years after it was first put forward, but in that time, they have managed to mobilize together to challenge the racism baked into intellectual-property laws. Admittedly, this is the thinnest of silver linings, yet a silver lining it is nevertheless. The West won this round, but the power of the rest is growing.
