Waiving Windfalls: The Socio-Legal and Contextual Justification of a 'TRIPS Waiver' during the COVID-19 Pandemic

Abstract

Distributive concerns in respect of IP, especially in the context of pharmaceuticals, are nothing new. The histories of inequity in bargaining towards a multilateral agreement as well as in its implementation has been widely documented. However, with the COVID-19 pandemic, and its gruesome, rather focally visible, impact on access to health, there ought to be a shift in conversation beyond IP internalism, questioning the fundamental inequities which come with TRIPS.This paper goes on to highlight aspects of inequity in institutionalizing IP regimes across the world, and focusses on IP Gradualism, and the lack of it. It builds on narratives of capability building, the hypocrisy of transition periods, and its impact on the global political economy of IP institutions across nations. The paper is an attempt to defog the historical realities that have resulted in skewed capabilities, which are clearly being exposed during such a pandemic, leading to a situation where a part of the world, which was clearly not allowed to pursue sovereign self-determination for over centuries, is having to “beg” for a waiver of the same agreement which is the fundamental basis of situating this inequity, albeit to no effect.The paper discusses the prolonged practice of “absorption” and imitative learning practiced by nations currently opposing the waiver, and uses time as a metric, to lay down certain realities that are important and ought not be ignored while debating the waiver, even at a diplomatic level.The primary normative point which the paper makes is that getting rid of this knowledge and capability divide, during these critical times, and in fact De-Colonizing IP, requires an alternate accent - where global trade ought to be looked at from the eyes of geo-historical attentiveness. The essence of distributive justice, especially in the grim situation that we face today, lies in realizing the importance of the historical context, i.e., this context of prolonged inability, not due to controllable forces or complacency or a lack of merit, but rather due to global acts of suppression, accounted for in history.As a corollary to this normative claim, this paper also discusses the practice of grating “Waivers” under the WTO Agreement to show as to how the debate around waiving TRIPS obligations should have a clear favourable outcome, given the historical situations and circumstances in which such waivers have been granted. The legal limelight is on exposing the hypocrisy in the interpretation of “Exceptional Circumstances” under Article IX.3 of the WTO Agreement, further supporting the normative claims of inequity, need for context, and the fundamental restructuring of this global diplomatic regime. The final attempt of this paper is to harp upon the fact that the need of the hour is one of global solidarity, which cannot in fact be pragmatized unless one is forced to face these historical realities to consciously realize the context, and as I might as well say – the reasons, for the inequity that we see today. The context needs to be out there, and this paper is an attempt towards the same.