The recent World Health Organization Assembly (WHA) resolution calls for timely and equitable access to efficacious and affordable essential health technologies and products required in response to the COVID-19 pandemic which it recognizes as a global priority. It also calls for the removal of “unjustified obstacles” in accordance with the provisions of diverse international treaties, including TRIPS and the Doha Declaration on the TRIPS Agreement and Public Health, that prevent such access.
In this regard, a letter from the Executive Director of the South Centre to the Directors General of the World Health Organization (WHO), the World Trade Organization (WTO) and the United Nations Secretary-General called on the institutions “to support developing and other countries, as they may need, to make use of Article 73(b) of the TRIPS Agreement to suspend the enforcement of any intellectual property right (including patents, designs and trade secrets) that may pose an obstacle to the procurement or local manufacturing of the products and devices necessary to protect their populations.” Further, the letter refers to the “security exception” contained in Article 73 of the TRIPS Agreement, whereby “any WTO member can take the ‘actions it considers necessary for the protection of its essential security interests.’ The use of this exception will be fully justified to procure medical products and devices or to use the technologies to manufacture them as necessary to address the current health emergency.”
It is noteworthy that Article 73 can be applied across the board to all types of IP, as compared to provisions, such as Article 31, which are restricted only to patents. Hence, TRIPS flexibilities can be used in context of intellectual property rights such as copyrights, industrial designs or trade secrets to address a public health emergency. For example, trademark or design protection for face masks can create barriers in the manufacturing of ventilators, masks, or PPE which could be removed under Article 73.
Another advantage is that Article 73 does not exhaustively define any procedural obligations on the Member States to invoke it. Clause 73(b)(iii) gives ample space to take the necessary action in “time of war or other emergency in international relations.”
Trade law experts point out that although WTO Panels and Appellate Body are not bound by precedents, the use of Article 73 remains subject to the scrutiny of WTO’s dispute settlement mechanism. the most important issue is whether the phrase “other emergencies in international relations” includes situations like the present pandemic. It has been observed by experts that measures to contain pandemic falls within the scope of “necessary for the protection of its essential security interests.” The UNCTAD Resource Book on TRIPS and Development notes: “Arguably, pandemics such as HIV could be qualified as ‘emergencies in international relations’ as provided under Article 73(b)(iii) (the international relations component being the failure to obtain adequate supplies of medicines within the framework of the multilateral institutional structure).”
The WTO Panel in the Russia-Ukraine case defined the term “essential security interest.” Narrowly. According to the Panel, the phrase is “evidently a narrower concept than ‘security interests,’ and may generally be understood to refer to those interests relating to the quintessential functions of the state, namely, the protection of its territory and its population from external threats, and the maintenance of law and public order internally.”
It can be argued that protecting peoples’ health squarely falls within the “quintessential functions” of the state and a pandemic situation can affect the internal public order, too. Thus, the COVID-19 response measures constitute an essential security interest.
Another point of contention could relate to the meaning of the term “other emergency in international relations” in TRIPS Article 73(b)(iii) and whether a health emergency like a pandemic falls within the scope of that term. In the absence of a definition or explanation of the term arguably a Member has the freedom to determine what constitutes “other emergency in international relations.” Many WTO Members have already declared COVID-19 health emergencies. In the absence of a different definition, a WTO Member has the flexibility to define the term to include not only military emergencies but also other emergencies including health emergencies.
Nevertheless, the WTO Panel in Russia/Ukraine recognized the right of Members to define what constitutes an essential security interest. Therefore, it is not incorrect to say that the use of the security exception under Article 73(b)(iii) of the TRIPS Agreement falls within the WTO dispute settlement system’s scrutiny and that the Panel/Appellate Body would examine the objectivity of the classification under Article 73(b) (iii), which provides a good degree of leeway to Member States and the measures taken under it.
Unlike GATT and the General Agreement on Trade in Services (GATS), the TRIPS Agreement lacks an overarching public health emergency exception and therefore Article 73 should be considered to include public health emergencies in the light of The Doha Declaration on the TRIPS Agreement and Public Health. The Doha Declaration is widely viewed as an interpretive tool, and thus would facilitate the inclusion of health emergencies as part of the “other emergency in international relations.”
Hence, WTO Member States should use this flexibility in the TRIPS to address IP barriers related to medical products.