This negotiation is taking place at the World Health Organization (WHO), but it is useful to reflect on negotiations that have taken place at the World Trade Organization (WTO), where delayed outcomes were disappointing outcomes. In the negotiations over the 2001 Doha Declaration on TRIPS and Public Health, paragraph 6 of that agreement concerned one of the most contentious topics, a restriction in the TRIPS on the exports of products manufactured under a compulsory license. That export restriction undermines the ability to benefit from economies of scale and comparative advantage, is clearly protectionist and designed to reduce the utility of compulsory licenses, has a negative impact on both exporters and importers, and has a particularly harmful impact on countries with smaller market (something noted by the WTO in DS114): 6. We recognize that WTO members with insufficient or no manufacturing capacities in the pharmaceutical sector could face difficulties in making effective use of compulsory licensing under the TRIPS Agreement. We instructed the Council for TRIPS to find an expeditious solution to this problem and to report to the General Council before the end of 2002. The WTO failed resolve the issue by 2002, and the eventual August 30, 2003 decision, now part of the TRIPS as Article 31bis (with an annex and appendix), was complex, also protectionist, widely criticized and only used once by a company that indicated it would never use it again. The WTO eventually took up the export issue in the context of the COVID-19 pandemic, and the result was another agreement on exports, one that was temporary, restricted to COVID-19, also protectionist (limiting imports to and exports from developing countries) and limited to vaccines. The WTO agreed to consider an extension of the decision to diagnostics and therapeutics, two areas where it may have been more useful at that point, however the WTO went on to miss deadlines and eventually did nothing on the issue.
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