H I G H L I G H T S
• Access to Covid-19 vaccine is an issue of global concern
• Change is in the air for multilateralism
• Western Sahara dispute threatens to reignite
• Quest for Director General of WTO in limbo
• Elections to the International Court of Justice signal a return to normalcy
Access to Covid-19 vaccine is an issue of global concern
As news of the most promising Covid-19 vaccine candidates from Pfizer & BioNTech, Moderna, Oxford-AstraZeneca and the Russian Sputnik V being the most effective in clinical trials made global headlines, global fora became platforms for voicing concerns about equitable access to Covid vaccines. The final communique of the G-20 virtual Summit hosted by Saudi Arabia recognised “the role of extensive immunisation as a global public good” and pledged to “spare no effort” to ensure affordable, global access to Covid vaccines.
These sentiments reflected concerns about predictions that there will not be enough vaccines to cover the world's entire population, at least until 2023 and reports of studies projecting that even before any vaccine candidates have been approved for the market, planned purchases seem to have cornered the vaccine market. The Duke University calculated that purchase of 6.8 billion doses have been confirmed, with another 2.8 billion doses are under negotiation or reserved as optional expansions of existing deals.
Given finite manufacturing capacity, the direct deals made by high-income (and some middle-income) countries are likely to result in a smaller piece of the pie being available for equitable global allocation. Initiatives such as COVAX, which aims to provide two billion doses by the end of 2021 to protect high-risk populations around the world, with a longer-term goal of covering 20% of the population strive for equity. However, countries with adequate resources have purchased two or more doses for their entire populations upfront. Thus, the outlook for global equitable access to COVID-19 vaccines is bleaker when logistical challenges are taken into account in middle and lower income countries.
Amidst such concerns of “vaccine nationalism”, South Africa & India on October 2, 2020, submitted a proposal to the Trade-Related Aspects of Intellectual Property Rights (TRIPS) Council of the World Trade Organization for waiver from provisions of the TRIPS Agreement for prevention, containment and treatment of COVID-19. Specifically, they sought a temporary waiver of sections 1, 4, 5, and 7 of Part II of the TRIPS Agreement. Section 1 of part II of the TRIPS Agreement pertains to copyright and related rights; section 4 deals with industrial designs. Section 5 of part II of the TRIPS Agreement pertains to patents; section 7 deals with the protection of undisclosed information.
In essence the proposal is to allow all countries to choose whether or not to grant or enforce patents and other intellectual property (IP) related to COVID-19 drugs, vaccines, diagnostics and other technologies for the duration of the pandemic. While acknowledging that TRIPS “flexibilities” existed, the proposal argues that the cumbersome, case by case and product by product process for compulsory licensing and for placing limitations on or making exceptions to exclusive rights was unsuitable to tackle the challenges raised by the pandemic. Hence the proposal seeks to invoke the waiver available under Article 9 (3) of the WTO Agreement. While the WTO General Council strives for such decisions by consensus, they can be taken with the support of 75% of the 164 member states.
The subject was introduced at the TRIPS Council on 16th October and further discussed on 20 November. India and South Africa were joined by Eswatini, Kenya, Mozambique and Pakistan as co-sponsors. As expected, a large number of developing countries including Sri Lanka, Tunisia, Indonesia, Egypt, Cuba, Tanzania (on behalf of the African Group), Venezuela, Nigeria, Bangladesh and Jamaica (on behalf of Africa, Caribbean and Pacific Group) supported the proponents. There was widespread support from civil society and from UNAIDS and the the DG of WHO. On the other hand, USA, EU, Japan, Canada, Norway, Switzerland, UK and Brazil strongly opposed the initiative. Their main arguments were that Intellectual Property(IP) protection is not a barrier to wider access to COVID-19 health products; that the flexibilities already provided for in the TRIPS Agreement are adequate; and that IP is necessary to fund innovation. Several others including Chile, Mexico, Ecuador, China, Turkey and Ukraine were said to be open to further “constructive discussions”. The next meeting of the TRIPS Council is scheduled for 10 December. The General Council of the WTO, which is the authority to decide on the matter within 90 days, is scheduled to next meet on 17 December. In the meanwhile the Chairperson of the TRIPS Council would have further consultations on how to report on the matter.
Comment: A satisfactory outcome at the WTO to address equitable access to Covid vaccines is unlikely, given well known cleavages. However, as it is a matter of life and death for millions across the globe, the quest for affordable access and equitable distribution of vaccines, will remain even if collaborative solutions are difficult to arrive at. The issue will continue on the agenda of global fora, in some form or the other.
Change is in the air for multilateralism
Rarely has the outcome of the US Presidential election aroused such expectations amongst diplomats and staff at the UN headquarters in New York, as this year. The anticipated changes of policy and personnel in the US approach to multilateralism, after the inauguration of the next US President, seem to have already breathed new hope in an institution that was floundering amidst global tumult.
There is a widespread belief that for the next US Administration multilateralism will matter more. The announced return of the US to the Paris accord on Day One of the Biden Administration will symbolize the return of Climate Change and environmental issues to the top of the global agenda in 2021. It is a goal that the UN system has been assiduously working towards (See UNcovered Vol I, Issue 1, September 2020). Several other steps that fall in the realm of US executive decisions, are also seen as low hanging fruit that can be harvested early next year. Cumulatively all these will signal renewed US engagement with the UN system.
The announcement that Amb. Linda Thomas-Greenfield, a State Department veteran as the next US Ambassador to the UN with cabinet rank has been welcomed by UN watchers. Her knowledge of African issues is expected to stand her in good stead since African issues dominate the Security Council’s agenda. Also, African diplomats, who form the largest group at the UN, had felt neglected during the Trump Administration. The appointment of an African-American with long experience of African issues, in an environment where China’s “wolf warriors” have often overplayed their hand with African diplomats, makes it an especially smart move.
Long-time UN officials, recall that it was Senator Biden who joined Senator Jesse Helms to stitch together the 1999 Helms-Biden Act, which resulted in the payment of nearly $1 billion in unpaid arrears to the United Nations. The hope is that the terms of reference for US funding of UN, long set in accordance with the Helms-Biden Act may now be the guiding star for future US contributions. The thinking, amongst UN insiders, is that in 2021 with a more normal US to deal with UN Secretary General Guterres intends to put on the table several ideas to get the UN back to the center of global conversation on an array of issues.
Comment: Palpable hope for change at the UN is discernible amongst diplomats and UN officials. However, it is unlikely that the situation of the past can be restored in full measure. The UN system has moved on, in the last few years, notwithstanding the US distancing itself. The new normal may take time and may not be a replica of the past. Nevertheless, the talk is that change in any measure will be welcomed.
Western Sahara dispute threatens to reignite
Even as the UN Secretary General has repeatedly called for a global ceasefire so as to focus on the fight against Covid-19, the decades-long dispute between Morocco and the Polisario Front in Western Sahara threatened to return to open hostilities. Frustrated by the lack of international attention to its cause resulting in a territorial outcome that has been hardened into an internationally accepted reality and angered by a recent Moroccan military operation in a United Nations-monitored buffer zone, the Polisario Front on November 14, issued a decree announcing the “resumption of armed struggle in defense of the legitimate rights of our people.”
If the Polisario proceeds down this path, it would mean an end to the cease-fire agreement that was put in place in 1991 and is monitored by MINURSO, a UN peace keeping force. Whether it was “an exchange of gunfire,” as described by Morocco, or “a state of war,” as the Polisario Front claims, the the 29-year-old ceasefire between the two sides over the disputed region seems to be in danger of collapsing entirely, opening up another African conflict that has for long been contained. UN officials are scrambling to ensure that this is not so.
Comment: The Polisario Front’s declaration appears to be designed to drawing attention to Western Sahara. However, the response of UN officials and others are focused on efforts to ensure observance of the 1991 cease-fire by both sides. That perhaps is not what the Polisario would have wanted, but is the likely outcome in a world saddled by mounting crises of a larger magnitude.
Quest for Director General of WTO in limbo
The meeting of the General Council of the WTO scheduled for 9th November to appoint the DG of the WTO was postponed on account of “the health situation and current events”. At the last meeting in October, the facilitators had concluded that Dr. Ngozi Okonjo-Iweala was the candidate most likely to attract consensus and had recommended her appointment by the General Council as the next Director-General of the WTO. The US opposition to her had stalled a decision. (see UNcovered Vol I, Issue 2, October 2020)
The Covid-related restrictions placed by the Swiss authorities in early November, limiting meetings to gatherings of not more than 50 persons, meant that the 164 member General Council could not be convened as scheduled, as the requirement was that at least 50% of the members need to be physically present to ensure a quorum. Also, the prevalent uncertainty about the outcome of the US Presidential election was, perhaps, subsumed under the notion of “current events” that precluded the holding of the meeting.
The current US Administration’s position on the matter accounts for the continued uncertainty on the subject. To this is the added speculation that Dr. Ngozi Okonjo-Iweala, a dual Nigerian-US citizen, may have strong ties with the Democratic Party. On the other hand, it is also being talked about that the Republic of Korea’s Trade Minister Ms Yoo Myung-hee, is considering withdrawal after having demonstrably failed to garner broad support. Even if this was the case, the next General Council meeting planned for 17 December may be difficult to convene, as the legal requirements for physical presence of half the members may be difficult to fulfill. Changes of process and procedures that may be required to be agreed upon for the meeting to proceed in an environment of uncertainty about decision making in the last days of the Trump Administration add to the complexity.
Comment: It would appear that the situation of limbo that the WTO finds itself in is likely to continue for some more time. As with several other expected multilateral decisions, this change too may have to await the inauguration of the next US President on 20 January 2021.
Elections to the International Court of Justice signal a return to normalcy
Elections to five of the fifteen seats on the International Court of Justice are held once every three years. The process of balloting by two of the main UN organs - the General Assembly and the Security Council - to elect candidates separately but simultaneously, makes the process the most complex known to the UN system. The winning candidates need to obtain an absolute majority of 97 votes (out of a total of 193 members) in the General assembly and 8 votes (out of the 15 members) in the Security Council. This usually results in a repeated rounds of balloting until only five candidates obtain the required majority in both the bodies. However, the elections in November ended with just two rounds of balloting in the General Assembly and a single round in the Council.
Of the eight candidates contesting the five seats, four were current members of the Court: Hanqin Xue (China); Peter Tomka (Slovakia); Julia Sebutinde (Uganda); and Yuji Iwasawa (Japan). All of them were re-elected. Georg Nolte (Germany) was the other winning candidate. The remaining three candidates: Taoheed Olufemi Elias (Nigeria), Maja Seršić (Croatia) and Emmanuel Ugirashebuja (Rwanda) failed in their bids. The outcome ensured that the geographical distribution of seats remained as it was, with the judge from Germany replacing a judge from Italy who did not seek re-election. The elected judges will begin their nine year term from 6 February 2021.
Comment: The ease of outcome of the ICJ elections this time reinforced the exceptional nature of the electoral verdict three years ago. On that occasion, Judge Dalveer Bhandari (India) defeated Judge Christopher Greenwood (UK), unseating a judge from a permanent member of the UN Security Council for the first time in the more than 70 year history of the UN. It also changed the regional balance of the ICJ, by increasing an Asian judge and reducing a West European judge for the only time in the ICJ. The outcome, this time, signaled a return to business as usual.
(The views expressed are personal)