The draft text of the World Health Organization pandemic accord reaffirms countries’ rights to use to the full the flexibilities contained in the World Trade Organization TRIPS Agreement and the Doha Declaration on TRIPS and Public Health. However, in reality, countries that do use TRIPS flexibilities encounter complaints and pressure from the European Union and other countries (such as the United States) not to use them to their full extent.
It is, therefore, no surprise that countries are seeking additional assurances in the pandemic accord, which is in its final days of negotiations before it is meant to go to the World Health Assembly. In March, a group of developing countries proposed the following wording:
4bis. The Parties shall not challenge, or otherwise exercise any direct or indirect pressure on the Parties that undermine the right of WTO Members to use TRIPS flexibilities at any multilateral, regional, bilateral, judicial or diplomatic forum.
This provision was quickly nicknamed “the peace clause”. We commented at the time: The proposed peace clause in the pandemic accord in fact echoes the basic principle of the WTO TRIPS Agreement Article 1.1 which specifies that countries are not obliged to adopt TRIPS-plus measures and “shall be free to determine the appropriate method of implementing the provisions of this Agreement [TRIPS] within their own legal system and practice”. In other words, the proposed peace clause is a welcome reminder of this basic principle, certainly in the context of pandemics.
However, the EU remains opposed to the peace clause, presumably because it draws attention to their pursuit of TRIPS-plus laws and policies in third countries.
Here are some examples of EU trade policies and actions: