International Trade ♦ Online 62 Va. J. Int’l L. Online 1 (2021)

WTO Waiver from Intellectual Property Protection for COVID-19 Vaccines and Treatments: A Critical Review

BRYAN MERCURIO

In view of the increasing concern over global efforts to ensure equitable access to affordable COVID-19 vaccines, India and South Africa presented a proposal to the World Trade Organization (WTO) in October 2020 seeking a waiver of intellectual property rights (IPRs) in order to increase access to vaccines or other COVID-19 related technologies. The original proposal sought to waive IPRs that could relate to and impact the prevention, containment or treatment of COVID-19 prior to the availability of widespread vaccination and herd immunity. While the proposal has attracted support from some WTO Members and non-governmental organizations (NGOs), it has proven to be contentious and has not been endorsed by all WTO Members.

This essay reviews the justifications put forward by proponents of the waiver, namely that it would improve access to affordable vaccines and that alternatives available in the WTO’s agreement on IPRs are too complex for use by many developing countries. In response, this essay argues that the waiver is unnecessary, would not alleviate the burden of access to effective and affordable medicines and vaccines, and could potentially hamper research, development, and innovation in the pharmaceutical sector.