The below is an open letter from lawyers and legal scholars and organisations calling on the Australian government to support the temporary TRIPS waiver at the World Trade Organisation
Dear The Hon. Scott Morrison, Department of the Prime Minister and Cabinet,
We write as Australian lawyers and legal scholars to urge the Australian government to show global and regional leadership to ensure increased global production and more equitable distribution of the tools to fight the COVID-19 pandemic. In particular, we call on the Australian government to support the temporary TRIPS waiver at the World Trade Organisation (WTO) in order to remove legal barriers to production of and access to medical tools (including vaccines, treatments, and diagnostics).
The longer it takes for the global population to be vaccinated and achieve herd immunity, the more likely it is that further COVID-19 outbreaks will threaten Australia’s relative security and prosperity. Approximately 11 billion doses of COVID-19 vaccines are needed to vaccinate 70% of the world’s population and achieve population-level or herd immunity. To date only approximately 1.2 billion vaccine doses have been administered. Based on current trajectories, mass immunisation in poorer countries could take until 2024 or longer. The failure to ensure developing countries have access to COVID-19 vaccines could cost the global economy US$9.2 trillion. Critically, the longer it takes to vaccinate the world the more likely it is that new variants will develop that could potentially render current vaccines ineffective. Already multiple SAR-CoV-2 variants are circulating globally.
The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) requires WTO member states to provide legal protections for a broad range of intellectual property rights. These protections are not absolute, and trade law provides a number of flexibilities, including compulsory licensing in low- and middle-income countries, to address public health emergencies. The 2001 Declaration on the TRIPS Agreement and Public Health affirms that TRIPS “can and should be interpreted and implemented in a manner supportive of WTO members’ right to protect public health and, in particular, to promote access to medicines for all”.
Countries also have international human rights obligations to ensure access to medicines, including COVID-19 vaccines, to all. Human rights experts have recently affirmed that “The TRIPS Agreement can and should facilitate the protection of public health on a global scale, promote self-sufficiency of all members, and not be a barrier to accessibility of COVID-19-related medicines and vaccines”. However, existing TRIPS flexibilities were designed to address localised epidemics or supply issues. The exceptional circumstances of the unprecedented COVID-19 crisis requires a comprehensive global approach based on multilateral cooperation.
In response to concerns that intellectual property rights were potentially hindering timely access to essential medical supplies India and South Africa in October 2020, proposed a waiver from the implementation, application and enforcement of certain TRIPS provisions (Sections 1, 4, 5, and 7 of Part II of the Agreement and to enforce them under Part III) in relation to the prevention, containment and treatment of COVID-19. They argued that “an effective response to the COVID-19 pandemic requires rapid access to affordable medical products, including diagnostic kits, medical masks, other personal protective equipment and ventilators as well as vaccines and medicines for the prevention and treatment of patients in dire need.” The proposed waiver is now supported by over 118 of 164 WTO member states.
On 5 May 2021 the Biden-Harris Administration announced its support for waiving intellectual property protections for COVID-19 vaccines, recognising that “the extraordinary circumstances of the COVID-19 pandemic call for extraordinary measures”. Thereafter, New Zealand changed its stance to support the waiver “as an important part of our collective efforts to address the human catastrophe of the pandemic”. The European Union too has indicated greater willingness to negotiate the proposal, but has not yet agreed to a waiver. Australia still has the opportunity to join those countries leading a more equitable global response to the pandemic.
It is profoundly urgent that the world acts now to ensure more vaccines are made in order to save lives and livelihoods. Alongside, promoting greater sharing of vaccines technologies and know-how through the COVID-19 Technology Access Pool (C-TAP) supporting this waiver is a critical way to facilitate the global recovery from this pandemic. We therefore call on the Australian government to publicly support the TRIPS waiver, not just for vaccines, but for all medical tools necessary to prevent, contain and treat COVID-19.
The next regular meeting of the WTO Council is scheduled for 8-9 June 2021. We urge the Australian Government to announce this position prior to the next meeting and to engage constructively to ensure that the waiver moves through text-based negotiations quickly.
Yours sincerely,
1. Dr Julia Dehm, La Trobe University
2. Professor Sundhya Pahuja, Melbourne Law School
3. Dr Ntina Tzouvala, ANU College of Law
4. Associate Professor Anthony Hopkins, ANU College of Law
5. Connor Foley, Melbourne Law School
6. Dr Jess Hambly, ANU College of Law
7. Dr Shane Chalmers, Adelaide Law School
8. Associate Professor Imogen Saunders, ANU College of Law
9. Tim Lindgren, PhD Candidate, Melbourne Law School
10. Johanna Commins, PhD Candidate, Melbourne Law School
11. Dr Cait Storr, University of Technology Sydney
12. Associate Professor Ben Golder, University of New South Wales
13. Professor Bronwen Morgan, UNSW Sydney Faculty of Law and Justice
14. Professor Jennifer Beard, University of Melbourne
15. Dr Sara Dehm, Faculty of Law, University of Technology Sydney
16. Professor Fleur Johns, UNSW Sydney Faculty of Law and Justice
17. Dr Savitri Taylor, La Trobe Law School
18. Dr Hannah Robert, La Trobe Law School
19. Professor Sarah Joseph, Griffith Law School
20. Dr Marc Trabsky, La Trobe Law School
21. Claerwen O’Hara, PhD Candidate, Melbourne Law School
22. Dr Madelaine Chiam, La Trobe Law School
23. Dr Laura Griffin, La Trobe Law School
24. Dr Maria O’Sullivan, Monash University
25. Odette Mazel, Melbourne Law School
26. Dr. Kamalesh Adhikari, TC Beirne School of Law
27. Robi Rado, Melbourne Law School
28. Dr Erica Millar, Crime, Justice and Legal Studies, La Trobe University
29. Dr Emma Russell, Crime, Justice and Legal Studies, La Trobe University
30. Dr Daniel Joyce, UNSW Sydney Faculty of Law and Justice
31. Associate Professor and ARC Future Fellow Rebecca Giblin, Melbourne Law School
32. Professor Sean Cooney, Melbourne Law School
33. Dr Perla Guarneros, La Trobe Law School
34. Professor Farrah Ahmed, Melbourne Law School
35. Dr Ozlem Susler, La Trobe Law School
36. Melissa Kennedy, Melbourne Law School
37. Toerien van Wyk, PhD Candidate, Melbourne Law School
38. Professor Lee Godden, Melbourne Law School
39. Pan Karanikolas, PhD Candidate, Crime, Justice and Legal Studies, La Trobe University
40. Dr Thomas Andrews, La Trobe Law School
41. Dr Cristy Clark, Canberra Law School
42. Juliette McIntyre, University of South Australia and PhD candidate, Melbourne Law School
43. Dr Cassandra Steer, Senior Lecturer, Australian National University College of Law
44. Dr Sarah Moulds, Justice and Society Unit, University of South Australia
45. Dr Kathryn Greenman, Lecturer, University of Technology Sydney
46. Professor Susan Harris Rimmer, Griffith University
47. Associate Professor Benedict Sheehy, Canberra Law School
48. Emeritus Professor Gary Dowsett, La Trobe University
49. Professor Justine Nolan, Director Australian Human Rights Institute, UNSW
50. Professor Joo-Cheong Tham, Melbourne Law School
51. Jane Knowler, University of South Australia
52. Dr Michelle Fernando, University of South Australia
53. Dr Marco Rizzi, University of Western Australia
54. Dr Susannah Chapman, The University of Queensland
55. Dr Karen Crawley, Griffith Law School
56. Dr Dylan Lino, Law School, University of Queensland
57. Dr Emma Palmer, Griffith Law School
58. Dr Alice de Jonge, Monash Business School
59. Professor Mary Keyes, Griffith Law School
60. Dr Shelley Bielefeld, Griffith Law School, Griffith University
61. Dr Edward Mussawir, Griffith Law School, Griffith University
62. Professor Louis de Koker, La Trobe Law School
63. Professor Miranda Stewart, Melbourne Law School
64. Lev Bromberg, Melbourne Law School
65. Ashleigh Best, PhD Candidate, Melbourne Law School
66. Dr Erin O’Donnell, Melbourne Law School
67. Emily O’Connell, Melbourne Law School
68. Professor Elena Marchetti, Griffith Law School
69. Alice Bleby, UNSW Faculty of Law and Justice
70. Azadah Raz Mohammad, PhD Candidate, Melbourne Law School
71. Millicent McCreath, PhD Candidate, UNSW Sydney Faculty of Law and Justice
72. Siddharth Narrain, PhD Candidate, UNSW Faculty of Law & Justice
73. Dr Kathleen Birrell, Melbourne Law School
74. Astari Kusumawardani, Melbourne Law School
75. Dr Rebekah McWhirter, School of Medicine, Deakin University
76. Tess Whitton, Melbourne Law School
77. Elizabeth Hicks, PhD Candidate, Melbourne Law School
78. Dr Mark Taylor, Melbourne Law School
79. Professor Harry Blagg, UWA Law School
80. Tomas Fitzgerald, Minderoo Tech & Policy Lab, UWA
81. Sam Klintworth, National Director, Amnesty International Australia
82. Minna Paltiel, PhD Candidate, Melbourne Law School
83. Dr Allan Ardill, Griffith Law School
84. Nina Araneta-Alana, PhD Candidate, Melbourne Law School
85. Dr Michelle Staggs Kelsall, SOAS University of London
86. Professor Leighton McDonald, ANU College of Law, Australian National University
87. Professor Leanne Weber, Canberra Law School
88. Dr Kate Leader, York Law School
89. Alex P Dela Cruz, PhD Candidate, Melbourne Law School
90. Michelle Burgis-Kasthala, University of Edinburgh
91. Professor Lisa Brophy, La Trobe University
92. Dr Gabrielle Simm, University of Technology Sydney
93. Jocelyn Bosse, PhD candidate, Law School, University of Queensland
94. Dr Adrian Aronsson-Storrier, School of Law, University of Reading
95. Dr Kate van Doore, Griffith Law School
96. Professor Katharine Young, Boston College Law School
97. Dr Philipp Kastner, University of Western Australia
98. Rebecca Faugno, UWA Law School
99. Prof Jean du Plessis, Professor (Corporate Law), Deakin Law School, Deakin University
100. Professor Ainsley Newson, University of Sydney
101. Professor Willem de Lint, Flinders University
102. Emerita Professor Margaret Thornton, Australian National University
103. Professor David Wishart, La Trobe University
104. Dr Jane Kotzmann, Deakin Law School
105. Associate Professor Hilde Tubex, UWA Law School
106. Professor Alison Gerard, Canberra Law School, University of Canberra
107. Associate Professor Michelle Taylor-Sands, University of Melbourne
108. Saika Sabir, PhD Candidate, Melbourne Law School, University of Melbourne
109. Rebecca Tisdale, Clinical Solicitor, Deakin Law School
110. Sahiba Maqbool, PhD Candidate, La Trobe Law School, La Trobe University
111. Associate Professor Guy Fiti Sinclair, Victoria University of Wellington Faculty of Law
112. Dr Elyse Methven, Faculty of Law, University of Technology Sydney
113. Dr Alice Palmer, Senior Fellow, Melbourne Law School
114. Daria Vasilevskaia, PhD Candidate, Melbourne Law School & Aix Marseille University
115. Dr Luís Bogliolo, Melbourne Law School
116. Adjunct Professor Holly Cullen, UWA Law School
117. Dr Adil Hasan Khan, Melbourne Law School
118. Divya Garg, PhD candidate, RMIT University, Melbourne.
119. Professor Brian Opeskin, Faculty of Law, University of Technology Sydney.
120. Associate Professor Laurie Berg, Faculty of Law, University of Technology Sydney
121. Dr Katherine Fallah, Adjunct Fellow, University of Technology Sydney
122. Professor Beth Goldblatt, Faculty of Law, University of Technology Sydney
123. Dr Joanna Kyriakakis, Faculty of Law, Monash University
124. Dr Sophie Riley, Faculty of Law, University of Technology
125. Dr Tamsin Phillipa Paige, Deakin Law School
126. Professor Lucas Lixinski, Faculty of Law and Justice, UNSW Sydney
127. Associate Professor Peter Burdon, Adelaide Law School, University of Adelaide
128. Dr Melanie O’Brien, UWA Law School
129. Dr Brandy Cochrane, Victoria University
130. Angela Kintominas, Faculty of Law and Justice, UNSW Sydney
131. Dr Michelle Rourke, Griffith Law School
132. Dr Anthea Vogl, Faculty of Law, University of Technology Sydney
133. Dr Usha Natarajan, Edward W Said Fellow, Columbia University
134. Professor David Leary, Acting Associate Dean (International), Faculty of Law, University of Technology Sydney.
135. Balawyn Jones, PhD Candidate, Melbourne Law School
136. Dr Peter Handford, emeritus Professor, UWA Law School
137. Betty Barkha, PhD Candidate, Monash University
138. Professor Robyn Carroll, UWA Law School
139. Professor David Kinley, Sydney Law School
140. Elisabeth Lopez Desvars, Faculty of Law, Monash University 141. Duncan Wallace, PhD Candidate, Faculty of Law, Monash University
142. Hamish MacDonald, PhD candidate, Law School, University of Queensland
143. Caitlin Murphy, PhD student, Melbourne Law School
144. Dr Jordana Silverstein, La Trobe University
145. Associate Professor Rebecca Monson, ANU College of Law
146. Danish Sheikh, PhD Candidate, Melbourne Law School
147. Mostafa Haider, Lecturer, Curtin University Law School
148. Dr Maria Elander, La Trobe University
149. Adjunct Assoc. Prof Judith Grbich, Griffith Law School
150. Adjunct Professor Dr Ian Duncanson, Griffith Law School
151. Dr Angela Daly, University of Strathclyde Law School (Scotland). Australian citizen and former member of Queensland University of Technology Faculty of Law and Swinburne University of Technology.
152. Professor Kathy Bowrey, Faculty of Law & Justice, University of New South Wales
153. Dr Piers Gooding, Melbourne Law School
154. Dr Kate Grosser, RMIT School of Management
155. Professor Penelope Weller, RMIT University.
156. Professor Alan Lowe, RMIT University.
