How to find a balance between respect for the intellectual property rights of vaccine manufacturers and the right to life of those who do not have access to it?

This issue has a very instrumental and even bureaucratic dimension in the WTO.

There is a possibility in the system of cellular trade rules on intellectual property to waive the obligation to protect intellectual property rights, if it concerns the issue of health protection.

In cellular jargon, this is called a waiver. In the early 1990s, during the Uruguay Round, this was a point of balance between developed and developing countries.

This balance is set out in Article 31 of the TRIPS Agreement and applies to health emergencies. And like any compromise, it is formulated too broadly for each party to interpret in its favor.

Since then, the issue of legal non-compliance with intellectual property rights to pharmaceutical products has become a separate universe in the life of the WTO. The ongoing declarations and clarifications and even amendments to the TRIPS Agreement itself have been aimed at achieving predictability and, of course, reducing the scope for States that can benefit from the possibility of producing medicines without respecting intellectual property rights.

The pandemic changed everything.

Obviously, the scale of the disease required a different approach than the already rather bureaucratic procedure for waiving drug responsibilities. In October 2020, South Africa and India formally submitted an initiative to approve a general derogation for both vaccines and coronavirus drugs.

Of course, the idea of ​​enabling all states to produce drugs and vaccines without respect for intellectual property rights has upset the old divisions between large-scale states and developing states.

Plus, the WTO debate is intertwined with broader "vaccine diplomacy."

Waiver is perhaps the only thing the WTO can do to virtually overcome the pandemic.

Therefore, it is obvious that this issue has become a priority for the newly elected Director General of the WTO Ngozi Okonjo-Iweala. However, it was expected that the discussion would end in nothing, because both the arguments and the positions of the parties have long been known.


However, the situation was changed by the statement of US Trade Representative Catherine Ty, that the United States will support the waiver.

There can be many reasons for this. First, vaccination is on the march in the United States, and there is already an expectation that vaccination will soon be available to all on a commercial basis.

Second, certain restrictions on the power of big business and big farms may be in the interests of the Biden-Harris administration.

And, most importantly, thirdly - to restore economic activity around the world is more profitable for the United States than the profits of one sector of the economy.

One way or another, on June 7-8, the WTO may reach a historic decision to provide a broad waiver.

It all depends on the EU, which ignores no criticism and is convinced that it is possible not to fuss and systematically vaccinate its population first, and then give access to others and provide a fair return for corporations.

Although a wave of criticism from other partners (for example, the same dispute with Australia over restrictions on vaccine exports) may change the EU's position.

Whether the EU will give the green light for vaccine production to other countries is one of the questions of the EU summit, which is taking place these days.

For Ukraine, the story with the waiver is important primarily for the consumer - Ukrainians need a vaccine.

But we also need greater openness in the global pharmaceutical business, in which Ukrainian manufacturers can more easily integrate.


Publications in the "Expert Opinion" section are not editorial articles and reflect only the author's point of view.


Deputy Minister of Economic Development, Trade and Agriculture, Trade Representative of Ukraine





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