AMY GOODMAN: This is Democracy Now!, democracynow.org, The War and Peace Report. I’m Amy Goodman, with Nermeen Shaikh.

Hundreds of public health and civil society organizations have denounced the World Trade Organization for approving a text last week that they say leaves in place intellectual property barriers that will continue to limit global access to COVID-19 vaccines, tests and treatment.

In Cape Town, South Africa, Fatima Hassan is the founder and director of Health Justice Initiative in South Africa, whose recent op-ed is headlined “New WTO deal is a slap in the face to poorer countries.” And in New York City, we’re joined by Mihir Mankad. He is a senior adviser for global health advocacy and policy for Doctors Without Borders, known as MSF. He was at the World Trade Organization meeting.

Welcome to both of you to Democracy Now! Mihir Mankad, if you could lay out what happened at the meeting? I think part of why decisions like these can happen is because it is so hard to understand for the rest of the world the kind of bureaucratic language that’s used.

MIHIR MANKAD: Sure. Thank you, Amy.

In fact, it seems like nothing much happened, unfortunately, as you just stated. We were really disappointed in the outcome that was reached. You know, the negotiations for this particular decision have been taking place since May, but for the last 18 months the World Trade Organization has been discussing a proposal by India and South Africa to completely suspend intellectual property rights on the full range of COVID-19 medical tools. And that’s, in fact, not what was discussed at all in Geneva last week. And in fact, a bloc of rich countries in the EU, the United States, U.K. and Switzerland, amongst others, led the charge, in essence, to arrive at this watered-down decision, which, in fact, doesn’t waive any intellectual property rights and, in our opinion, you know, may ultimately cause more damage than good.

NERMEEN SHAIKH: And, Fatima Hassan, you wrote a piece, following the WTO decision, headlined the “New WTO deal is a slap in the face for poorer countries.” Could you explain why you think that’s the case and what role you believe the director-general of the WTO made in enabling this decision? She is, of course, the first African and the first woman to head the organization.

FATIMA HASSAN: Thank you. So, we’ve argued that it’s a weak deal because it’s not a waiver. It’s not the waiver that was proposed by South Africa and India. It only deals with vaccines, and it only deals with patents. And, in fact, the entire deal is more about a summary of what you would have to do if you decide to manufacture vaccines and export them. So it deals quite significantly with export rights and who should be opting in and who should be opting out of the deal, doesn’t deal with all the other elements of intellectual property like copyright and trade secrets or the recipes and the knowledge that we actually need to scale up manufacturing. And it doesn’t even deal with treatment and diagnostics in the middle of 2022.

And so, when we’ve said that this is a weak deal that has been enabled by the secretariat and the leadership of the DG, what we mean by that is that we believe that countries were bullied into silence, that countries were bullied into submission in the last two-and-a-half months, and that the text that was actually put forward by the DG of the WTO was based on what the EU and the U.S. wanted.

And so, the process that was followed to ram through the text, through what we call green room secret negotiations, excluding certain countries, you know, basically ensuring that the African group was silent and unable to propose any textual amendments, doesn’t actually befit an institution that is supposed to be based on consensus and an institution that is supposed to prioritize everybody’s lives and everybody’s rights in the middle of a pandemic. So, we have argued that the WTO, for us, is now really not fit for purpose, and the TRIPS Agreement, that deals with aspects of lifesaving medical techologies, is also, clearly, from what we’ve seen in the last two years, not fit for purpose, either.

NERMEEN SHAIKH: So, Mihir, could you get into some of the details of what precisely this agreement entailed, the issue also, if you could explain, of compulsory licensing? And finally, the fact that the U.S., last year in May, the Biden administration, expressed its support for temporarily waiving intellectual property rights for COVID vaccines — what was the position that U.S. delegates took at this meeting?

MIHIR MANKAD: Sure. So, I think Fatima put it perfectly well. This current agreement doesn’t waive any intellectual property rights and, in fact, is simply a clarification of some existing procedure, with a small waiver, as it were, concerning the exportation of goods produced through the use of a compulsory license. A compulsory — so, under normal circumstances, a — and that’s for only COVID-19 tools, I should say, and for a limited period, just five years. So, under normal circumstances, a compulsory license is something that allows someone else to produce or make use of a good or a patent that the patent holder holds. And, in general, the TRIPS Agreement allows for the use of compulsory licenses; however, the products produced through those compulsory licenses are meant to be primarily for domestic purposes. And this decision expands that slightly to allow for those products to be exported, as well, to certain eligible countries. Those eligible countries are primarily or only developing countries in this case, and even then, the agreement encourages those countries that have vaccine production amongst developing countries to opt out. So, for example, China has opted out, and China happens to be one of the world’s largest vaccine producers. So, in some sense, of course, this is completely counterproductive. Along with that, again, as Fatima mentioned, this decision doesn’t include immediately treatments or diagnostics in its scope. And that’s usually problematic considering where we are in this pandemic.

And insofar as the U.S.'s role and position, you're right that the government, the Biden administration, agreed to a waiver last year, or at least stated a commitment to pursuing that. And what we found in Geneva last week and over the course of the last few months is that the administration has been very hesitant to state a public position. It’s, in fact, I think, as we learned over the course of the last week or so, been effectively pushing back on the immediate inclusion of treatments and diagnostics in this decision, and also pushing back on ensuring that the full scope of intellectual property is covered by this particular agreement, so the know-how, industrial design, copyright and other things that might be critical to, as Fatima said, again, ensuring that there’s adequate global scale-up of all the necessary COVID-19 medical tools.

AMY GOODMAN: The Pharmaceutical Research and Manufacturers of America, PhRMA, president and CEO, Stephen Ubl, condemned the final deal reached by the WTO, saying pharmaceutical companies had produced more than 13 billion vaccines and had the capacity to vaccinate everyone in the world, and the problems countries have encountered in vaccinating their populations have more to do with distribution issues rather than access. He said, “Rather than focus on real issues affecting public health, like solving supply chain bottlenecks or reducing border tariffs on medicines, they approved an intellectual property waiver on COVID-19 vaccines that won’t help protect people against the virus.” He said, despite the fact that vaccines had been made available, quote, “Last-mile distribution challenges are causing countries around the world to destroy unused vaccines and turn away donations. Rather than resolving these issues, diplomats spent the past year and a half arguing at the World Trade Organization over ways to undermine the very intellectual property rights that enabled hundreds of collaborations to produce the COVID-19 vaccines on a global scale.”

I want to put this question to Fatima Hassan. You’re in South Africa. If you can put in very lay terms what we’re really talking about here, and what PhRMA, you know, the major corporations, that have made more money than they’ve ever made in their history off these vaccines, what he is saying?

FATIMA HASSAN: Thanks. So, I think that the industry can spin it however they wish to, but what we have is a track record in the past two years that timely access to the right vaccines at the right time, particularly for the African continent, was not possible because the single largest barrier facing us at that time, when we needed those vaccines, was intellectual property barriers. And so, the irony is that the industry is using a set of circumstances and facts that is currently applicable to justify the practices of both the industry as well as the EU and the U.S. for the past 20 months. And a hundred countries, 65 co-sponsors, very clearly articulated that the issue was not so much what the industry is now talking about as far back as October 2020, and that the invocation of patents, of copyrights, of trade secret was a barrier to scaling up manufacturing on an expeditious basis.

So, this argument, what we call the glut argument, that the industry has been, in my view, peddling for the last few months, is a very convenient distraction from the real barrier that IP faces, not just for vaccine production or the new generation vaccines that we’re going to need in the next few months, but also the treatment and diagnostics. Currently we’re facing a situation of treatment apartheid, where IP is the barrier to enabling countries to be able to use a generic version of a treatment that is very widely available currently in the U.S.

So, I think that, for us, it boils down to the fact that exactly what the U.S. and EU wanted all along, which was to limit it to only vaccines and patents, or to only talk about compulsory licensing, is exactly what the WTO has delivered to them in the form of this deal. So, basically, they won. They got exactly what they wanted, and, you know, I think, really enabled by an industry that has been claiming this all along that the waiver won’t make a difference, that it would harm innovation, that it would harm their IP. And, Amy, you and I have previously spoken about whose IP was it, and is it [inaudible] —

AMY GOODMAN: And just to be clear, “IP” means intellectual property.

FATIMA HASSAN: Yes.

AMY GOODMAN: Keep going.

FATIMA HASSAN: No, and, you know, just to sum up there is that the IP, the intellectual property, the patents, the knowledge that was generated off the back of public funding and public scientists, I think, really, with this deal, one has to take a long, hard look at how multilateralism at the WTO is actually failing us — it’s a very warped multilateralism — but also that TRIPS is no longer fit for purpose. The TRIPS Agreement on intellectual property for medicines and medical technologies is not fit for purpose, because this is the way in which we are interpreting it, and this is the way in which we are dealing with it in the middle of a pandemic. It doesn’t bode well for what’s to come next.

NERMEEN SHAIKH: Mihir, could you also respond to what the pharmaceutical industry said — namely, that the main problem is one of distribution and enabling vaccinations to be administered in the developing world, that there are doses, but there are problems with distribution and actual vaccination, number one? And then, is the main issue now, as Fatima has also said — the main issue at the moment is enabling access to treatments and diagnostics for the developing world?

MIHIR MANKAD: Yeah. So, I would agree that, you know, the industry is crying crocodile tears here by raising a fear concerning this particular decision, which I’m sure they’re aware won’t do nearly what they claim it will do.

Insofar as the supply and distribution concerns are concerned, I think Fatima is right that it’s a question of timing and adequacy and the capability of rapid deployment, you know, some of which perhaps have to do with distributional concerns, but are still, at the core, a question of whether we have enough, and then whether that can be moved around adequately, much of which is protected, or prevented, rather, I should say, by intellectual property barriers.

So, you know, what we’ve seen over the course of the last 18 months is that these barriers have inhibited companies in the Global South who are perfectly willing and capable of producing these vaccinations to actually do so. And, you know, especially early on, in the first year or so of vaccination, we saw massive shortfalls that have now led to huge amounts of global inequity.

So, you know, in general, I think this is, of course, still an ongoing question, and the fact that it’s very likely that we’ll be needing boosters on an ongoing basis makes it even more urgent. And at the moment, it’s correct, I think, to say that treatments are one of the most pressing issues with respect to access. And that’s because most of the effective treatments are under intellectual property control by just a few corporations. And there is, you know, for the time being, at least this year, no major supply available through anyone besides those originator companies. And even that which is available through those companies is in very limited stock and purchased mostly by high-income countries.

So, you know, unfortunately, we’re just making the same mistakes over and over again. The same mistakes we made with vaccines and access to vaccines early on in the pandemic is the same mistake we’re making with treatments right now.

AMY GOODMAN: Let me ask Fatima Hassan in South Africa: Is the pandemic ending?

FATIMA HASSAN: Not from where we’re sitting, no.

AMY GOODMAN: And, Mihir Mankad with Doctors Without Borders, you have this global perspective. What do you see right now?

MIHIR MANKAD: No, I don’t think we’re in a position to claim that the pandemic is ending. And, you know, neither — the WTO has also not indicated that the pandemic is ending anytime soon.

AMY GOODMAN: And finally, Fatima, what do you think would be the single most important action that could be taken right now to deal with this ongoing pandemic?

FATIMA HASSAN: So, unfortunately, because we have this weak deal, I think the single pressing thing that needs to happen is that every single country in the Global South has to start issuing compulsory licenses, but not just on vaccines, also on treatments and on diagnostics, because they are ordinarily permitted to do that under the TRIPS Agreement. So, if we don’t have strong domestic action or strong domesticating of the —

AMY GOODMAN: We have 10 seconds.

FATIMA HASSAN: — very weak deal, we won’t be able to get out of this pandemic.

AMY GOODMAN: Fatima Hassan, we want to thank you for being with us, Health Justice initiative, speaking to us from South Africa, and Mihir Mankad with Doctors Without Borders, or MSF, speaking to us from New York City.

And that does it for our broadcast. Democracy Now! is produced with Renée Feltz, Mike Burke, Messiah Rhodes, María Taracena. I’m Amy Goodman, with Nermeen Shaikh.