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Tell governments to stop blocking the WTO Waiver on monopolies of COVID-19 medical tools
by ICJ, Médecins Sans Frontières (MSF)
Nov. 2021 (MSF)
After more than a year of delay, the negotiation for a temporary waiver on intellectual property (IP) rights for COVID-19 medical tools under the World Trade Organization (WTO)’s Agreements on Trade-related Intellectual Property Rights (TRIPS) is speeding up, with countries engaging on the proposal to advance the negotiation before the 12th WTO Ministerial Conference in Geneva on November 30-December 3, 2021.
The waiver, as initiated by South Africa and India in October 2020, and supported by multiple WTO members could provide a critical legal pathway for countries to facilitate more diversified and sustainable production and supply of COVID-19 medical tools.
Médecins Sans Frontières (MSF) considers the adoption and implementation of the waiver are among the key actions that governments should take to turn the corner of the access challenges in COVID-19. We underline the following key elements as essential for inclusion in final text of the TRIPS waiver.
All essential medical technologies beyond vaccines
The scope of technologies under the waiver should go beyond vaccines. Ensuring access to all medical countermeasures is necessary to end the pandemic. MSF believes that the waiver must also cover other medical tools particularly medicines and diagnostics, as well as their underlying technologies, raw materials, components, manufacturing data, methods, delivery devices and process of production.
Our experience in working in public health emergencies and some of the most difficult situations in the world, has made clear that testing and treatments are essential to infectious disease prevention and mitigation. A waiver that does not cover all of these elements will be a failure.
Intellectual property barriers beyond patents
The TRIPS Waiver proposal has brought clear recognition to multiple types of IP barriers, beyond patents, that are challenging access to COVID-19 medical tools. Particularly, often regulatory information related to the manufacturing of the medical product is available to the drug regulator but not disclosed, even when required in the public interest.
This information submitted to authorities is not revealed and is treated as a trade secret, impeding the early entry of follow-on manufacturers for biotherapeutics, vaccines and other health technologies.
The current rules under the TRIPS agreement do not provide comprehensive and expeditious options to remove these legal obstacles including those posed by Article 39 of TRIPS agreement and provisions related to IP enforcement in a pandemic.
In addition, IP enforcement and disputes both under WTO framework and other trade agreements could hinder governments’ legitimate action in removing all IP barriers in the pandemic. It is imperative for the waiver to have clear effect to enable suspension of IP enforcement at national levels and remove all legal risks of governments being sued in front of any dispute settlement mechanism for implementing the waiver.
The final text of the waiver must include lifting any and all forms of IP and their enforcement through any dispute settlement mechanism that may hinder production and supply of or access to, COVID-19 medical tools. In particular, such IP would include patents, data exclusivity, trade secrets or any other protection of undisclosed information.
Sufficient duration for production and supply
The waiver must be of sufficient duration to help overcome the challenges of access to COVID-19 medical tools. There are many uncertainties associated with COVID-19 with the continuous emergence of new variants and gaps in treatment. The duration of the waiver should create an environment to prepare, scale up, diversify and sustain manufacturing and supply of COVID-19 vaccines, medicines, diagnostics and other medical tools and their materials and components.
The waiver should have a minimum duration of 5 years and be extendable to accommodate the ongoing uncertainty of the pandemic.
Nov. 2021
Global jurists call for waiver of global intellectual property rights for COVID-19 vaccines - International Commission of Jurists (ICJ)
Member States of the WTO who block or otherwise impede the adoption of a waiver of intellectual property rights for COVID-19 vaccines and other therapeutics are breaching their legal obligations to realize the rights to health, equality, life and science, the ICJ said today in an expert legal opinion published with the endorsement of over 85 jurists from across the world.
“International law requires that States stop impeding the TRIPS waiver and instead ensure global health solidarity in access to COVID-19 vaccines and therapeutics”, said Sam Zarifi, ICJ’s Secretary General, in Geneva.
On 2 October 2020 South Africa and India submitted a proposal to the WTO Council for Trade-Related Aspects of Intellectual Property Rights (TRIPS), proposing a temporary waiver of the application of certain provisions of the TRIPS Agreement to allow for all States to ensure access to the full range of diagnostics, medications, vaccines, therapeutics, and other relevant health products required for the containment, prevention, and mitigation of COVID-19.
This proposal has received the support of more than 100 States but continues to be opposed actively or otherwise obstructed by other States, including UK, Norway, Switzerland, Germany and the European Union.
A number of UN Treaty Bodies and Special Procedures of the UN Human Rights Council have called upon States to desist from impeding the waiver to ensure that all States can realize their human rights obligations.
The expert legal opinion, which has already been endorsed by more than 85 prominent legal experts, sets out States’ human rights obligations in detail, concluding that as the WTO meets later this month it is incumbent on all States to desist from blocking the TRIPs waiver.
These obligations are set out in several international treaties to which the significant majority of WTO member States are bound. Some 87% of WTO member States bear concurrent treaty obligations under the International Covenant on Economic, Social and Cultural Rights (ICESCR), and 88% of WTO member States bear concurrent treaty obligations under the International Covenant on Civil and Political Rights (ICCPR).
“As the opinion published today decisively details, States must cooperate to ensure the full realization of all human rights including in terms of their immediate obligations to ensure comprehensive access to COVID-19 vaccines and therapeutics”, said Zarifi.
“What’s more there is ample precedent with this WTO for the issuing of such a waiver in order to protect public health, in the public interest”.
The opinion, which was elaborated through a collaborative effort with a wide range of experts and civil society organizations from around the world, remains open for further sign-on.
* Human Rights Obligations of States to not impede the Proposed COVID-19 TRIPS Waiver – See Report/Executive Summary via link below.
There is acute inequality in access to COVID-19 vaccines across and within States. The World Health Organization (WHO) has repeatedly decried the fact that the African continent accounts for a mere 2% of global vaccinations against COVID-19, despite Africa constituting approximately 17.5% of the world’s population.
Only 15 out of 54 African nations had met the WHO’s target to vaccinate 10% of each country’s population by the end of September 2021. The UN Secretary General has described this situation as ‘a moral indictment of the state of our world’ and an ‘obscenity’.
On 14 October 2021, six independent UN experts sent a total of 44 letters to G7 and G20 States, the European Union, and the World Trade Organization, as well as pharmaceutical companies calling “for urgent collective action to achieve equal and universal access to COVID-19 vaccines”, including through the issue of a TRIPS waiver.
The International Commission of Jurists has consistently supported the TRIPs waiver, including at the UN Human Rights Council and the UN Committee on Economic, Social and Cultural Rights.
The ICJ’s research has documented the far-reaching and devastating impact of the failure to adopt such a waiver in a range of contexts including Southern Africa, Thailand, Nepal, Palestine, and Colombia.

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Leaving no one behind in the climate emergency
by UN Office for Humanitarian Affairs
Nov. 2021
Humanity faces a stark choice
Last year, on the seventy-fifth anniversary of the United Nations, world leaders adopted a resolution at the General Assembly, reaffirming their collective efforts to create a fairer, resilient world.
“We will leave no one behind” is the first of the 12 pledges that world leaders made in that resolution.
The pledge states: “… The peoples have to be at the centre of all our efforts. Particular attention must be given to people in vulnerable situations. Humanitarian access to those in need of assistance must be granted without obstacle or delay and in line with the humanitarian principles...”
The climate crisis affects communities around the world, but the crushing impacts are unevenly weighted against the most vulnerable who face multiple other threats, including conflict, displacement, hunger, and poverty
We cannot curb humanitarian suffering without addressing the climate crisis.
Leaving no one behind requires us to put the most vulnerable people front and centre, helping them to survive and adapt to a world irreversibly disrupted by the climate emergency.
Who is at risk of being left behind?
People who contribute least to the greenhouse gas emissions – especially in less-developed economies and conflict zones – often suffer the most from the devastating climate impacts, as they lack the resources to withstand shocks and adapt to the changing environment.
People caught in humanitarian crises are among those most vulnerable to the climate crisis, and at risk of being left further behind.
They are the women forced to flee their homes, abandoning everything they own; men displaced after disastrous events, losing the means to make a living; children born into conflict with nowhere to turn; families trapped in poverty and now facing additional stress from climate extremes.
All of the top 15 countries most vulnerable and least adapted to climate change are in a state of conflict or social fragility. But these countries are the least responsible for global warming. Data show that these countries accounted for only 0.2 per cent of global greenhouse gas emissions in 2019.
In 2009, developed countries pledged to jointly mobilize US$100 billion annually in climate finance by 2020 to help the most vulnerable communities adapt to and mitigate the effects of climate change. But they are falling behind in that pledge, as climate extremes continue to ravage poorer countries.
Madagascar: the world’s first climate-induced famine
Madagascar has a large vulnerable population; four out of five people live below the poverty line, and half of the country’s children under age 5 suffer from stunting due to chronic malnutrition.
To make matters worse, southern Madagascar is experiencing its worst drought in four decades due to climate change. Unusually low rainfall has devastated food production. Over 1 million people are reported to be food insecure and 400,000 are on the brink of famine.
Advanced economies, especially those that have historically reaped the benefits of carbon-intensive development, have a moral responsibility to substantially increase climate finance to help vulnerable countries, such as Madagascar, fight climate change before it is too late.
Central African Republic: overlapping vulnerabilities
In the Central African Republic, the growing frequency of erratic weather patterns has led to an increased scarcity of water resources. This is creating tension between farmers and livestock herders, and increasing the existing pressures of conflict, water-related stress and social cohesion.
Humanitarian impacts are more devastating when communities suffer from overlapping disasters, as they do not have enough time to recover between shocks. The humanitarian system must embrace a new mindset that puts adaptation and community resilience centre stage.
But for this to happen, the international community must significantly increase climate-adaptation finance and invest in anticipatory action and disaster risk reduction.
Women and girls cannot be left behind
Women and girls are disproportionately affected by climate shocks. For example, those who live in rural areas are more likely to depend on natural resources for livelihoods, which are increasingly threatened by a changing climate. Such vulnerabilities may intensify the risk of gender-based violence, which is often exacerbated following climate-related disasters.
Addressing women’s and girls’ acute needs requires greater investment in humanitarian programming informed by women’s meaningful participation and robust gender analysis. Humanitarian response must prioritize the prevention and response to gender-based violence, centred around building resilience to future shocks.
$100 billion climate financing is a floor, not a ceiling
The race against the climate crisis is “a race we must win,” said United Nations Secretary-General António Guterres. To win this race, the world must take bolder action to finance climate adaptation and mitigation, and prioritize the most vulnerable and at-risk communities.
The climate-adaptation costs for developing countries could rise to an estimated $300 billion per year by 2030. Pressure is growing on developed countries to fully deliver their $100 billion commitment.
However, climate-adaptation finance is still woefully insufficient and does not prioritize nations most at risk. For example, the top 15 countries that are most vulnerable to the climate crisis received less than 6 per cent of global adaptation finance in 2019.
Humanitarian organizations are already stretched thinner than ever, responding to constantly growing humanitarian needs. A global temperature increase beyond the 1.5°C threshold could create a runaway humanitarian crisis of unprecedented scale, threatening the system’s collapse.
In a world irreversibly disrupted by the climate crisis, we must leave no one behind.
People suffering the most need urgent funding. Developed countries honouring their $100 billion commitment is a starting point – an important symbol of trust for the world to work collectively and march together on a climate-resilient path.

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