Medical workers wait for the Marina 1626 tugboat to dock in Palembang, South Sumatra, on Thursday. Some of the crew workers on the boat are thought to have contracted Covid-19. (Antara Photo/Feny Selly)

How Indonesian Diplomacy Can Ensure Equitable Access to Covid-19 Vaccine

BY :ABDUL KADIR JAILANI

MAY 29, 2020

A vaccine for the coronavirus is key to the global efforts to stop the Covid-19 pandemic. Without a vaccine, we will never have a "normal" life again. 

For that reason, countries and companies are risking billions of dollars in the race to find an effective and safe vaccine. Once it's found, big pharma will start producing it in mass quantities for even bigger profits and to serve various post-pandemic political agendas.

Providing access to an affordable vaccine for the coronavirus will be crucial in the fight against this pandemic. 

We don't want a scenario where the vaccine is available in some countries but hard to lay your hands on in developing ones.

If it is made available in developing countries, we should also make sure the vaccine would be affordable to their lowest income groups.

Unfortunately, the global patent regime has made the price of pharmaceutical products skyrocket. Access to affordable Covid-19 vaccines may become a luxury beyond the reach of most people in developing countries.

This is the greatest challenge for Indonesian diplomacy in this pandemic. 

Foreign Affairs Minister Retno Marsudi has faced the challenge head-on by making a series of assertive moves in "vaccine diplomacy." 

In the International Coordination Group on Covid-19 coordinated by Canada, she has been fighting for equal access to the Covid-19 vaccines once they're available. 

One of her suggestions is to use the Agreement on Trade-Related Aspects of Intellectual Property Rights (Trips Agreement) to ensure easy access to the vaccines for everyone.

Trips Flexibilities 

Although the Trips Agreement has been regarded as a component of technological protectionism, it also has provisions that may work in the interest of developing countries.

The agreement reaffirms the right of countries to protect their public health. In particular, Article 31 allows countries to produce and export a generic version of patented medicines or vaccines without the authorization of the patent right holder when there is a national emergency or other circumstances of extreme urgency.

This provision is generally known as the compulsory license. In countries that lack domestic manufacturing capacity, however, compulsory licenses may be less effective in securing affordable access to Covid-19 vaccines.

Although the Trips Agreement also permits a country to import a generic version of the vaccine produced by another country under the compulsory license scheme, convincing the country to export its stockpiles at this pandemic will be extremely challenging. 

As an alternative, countries may also consider invoking Article 73 of the Trips Agreement, which offers the possibility of taking any action they consider necessary to protect essential security interests in time of an emergency.

However, this move may attract legal challenges through the World Trade Organization's Dispute Settlement Mechanism.

In addition, no countries are in a position to use this approach as there is no domestic law available to invoke it. 

If the Trips Agreement offers no recourse, developing countries have one last option: waive their obligations under the agreement as ruled in Article IX.3 of the WTO Agreement.

The Ministerial Conference can decide to waive obligations imposed by agreements under the WTO, including the Trips Agreement.

The real challenge is how to get the Ministerial Conference to make the decision in the current situation. There are practical and procedural challenges that will not be easily met. 

Innovative Ways

Nobel laureate Joseph Stiglitz has strongly appealed that now is the time for the international community to take unprecedented actions to cope with an unprecedented pandemic.

He has said that, in the absence of public intervention, we will remain reliant on a monopoly-driven system that favors profits of transnational pharmaceutical corporations to get the Covid-19 vaccine.

Costa Rica President Carlos Alvarado Quesada has submitted a proposal to the World Health Organization calling for the establishment of a voluntary pool of patent rights for free access or licensing on reasonable and affordable terms in every member country.

This approach could be called "open-science."

Studies have shown that patent pool has worked in biotechnology. It could serve the interests of both public health and the private industry. However, some countries or big pharma may have varying opinions on how open science can and should interplay with various intellectual regimes. 

The good news is that the idea has been endorsed by the director-general of the WHO, Tedros Adhanom Ghebreyesus.

Some countries are now urging the WHO to voluntarily pool intellectual property as part of a plan to ensure "equitable access" to vaccines at affordable prices. 

On the Right Track

The scale of the current Covid-19 pandemic makes immediate access to technologies, particularly to develop effective vaccines, more urgent than ever before.

Indonesian diplomacy in the pursuit of a vaccine for Covid-19 has been on the right track. We should continue to try to strike a balance between protecting public health and patent rights.

If flexibilities under WTO systems are inadequate to ensure effective responses, Indonesia and other developing countries may consider exploring other innovative ways to ensure equitable access to affordable vaccines, including the establishment of a WHO voluntary patent pool.

Abdul Kadir Jailani is the Ambassador of the Republic of Indonesia to Canada. The views expressed here are his own.

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