China's Position on a COVID WTO IP Waiver

At a WTO Council for Trade-Related Aspects of Intellectual Property Rights (TRIPS) meeting on 15-16 October 2020, WTO Members discussed a proposal submitted (WTO Doc. IP/C/W/669) by India and South Africa for a temporary waiver of certain TRIPS obligations they said would facilitate an appropriate response to COVID-19 (for competing perspectives on this issue, see: Achal Prabhala, Benny Kuruvilla, Burcu Kilic and Dana Brown, “We can’t let the WTO get in the way of a ‘people’s vaccine’,” The Guardian, October 15, 2020; James Bacchus, An Unnecessary Proposal: A WTO Waiver of Intellectual Property Rights for COVID-19 Vaccines, Cato Institute Free Trade Bulletin No. 78, December 16, 2020). Given the range of positions taken by WTO Members at the meeting, the Council chair, Ambassador Xolelwa Mlumbi-Peter of South Africa, said that “the item would remain suspended as members continue to consider the proposal.” Subsequently, the WTO Secretariat circulated a document (WTO Doc. JOB/IP/41) with “an advance copy of the statements made under this agenda item” by Members. China’s statements on the issue were as follows:

AGENDA ITEM 15: PROPOSAL FOR A WAIVER FROM CERTAIN PROVISIONS OF THE TRIPS AGREEMENT FOR THE PREVENTION, CONTAINMENT AND TREATMENT OF COVID-19

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15.18 China

129. We thank India, South Africa and co-sponsors for presenting this proposal. COVID-19 has severely threatened human life, security and health, disturbed the function of global supply chain and brought great challenges for the normal supply of treatment medicines and relevant medical equipment. The joint proposal emphasizes the difficulties faced by developing countries and LDCs and seeks to ensure Members’ timely, equitable and affordable access to commodities in relation to the prevention, containment and treatment of COVID-19, especially COVID medicines and vaccines. We would lend our support to exploring this issue at the TRIPS Council.

130. China has taken good note of the capacity constraints that developing countries encounter in using TRIPS flexibilities such as compulsory licensing, as pointed out by the proposal. China has made serious commitment that COVID-19 vaccine development and deployment in China, when available, will be made a global public good and developing countries will be our priorities. Earlier this month, China joins the COVID-19 Vaccines Global Access Facility, or the COVAX Facility, and will take concrete measures to promote the fair distribution of COVID vaccines, especially among developing countries.

131. China is willing to discuss access to commodities in relation to the prevention and control of COVID-19, including medicines and vaccines under the framework of the TRIPS Agreement, and supports the discussions on possible waiver or other emergency measures to respond to the pandemic, which are “targeted, proportional, transparent and temporary”, and which do not create unnecessary barriers to trade or disruption to global supply chains.

China’s position on this issue (it “supports the discussions on possible waiver or other emergency measures”) can be contrasted with those of strong supporters such as Kenya (“29. Kenya therefore welcomes the proposal by India and South Africa for the TRIPS waiver and indeed happy to be a co-sponsor and looks forward to further in-depth discussion by the Council on this submission”) and strong opponents such as the UK (“254. A waiver to the IP rights set out in the TRIPS Agreement is an extreme measure to address an unproven problem. The UK is of the view that pursuing the proposed path would be counterproductive and would undermine a regime that offers solutions to the issues at hand”).