(2023) 4 TWAIL Review 88-117
ISSN 2563-6693
Published under a Creative Commons licence. 

Between October 2020 and June 2022, the WTO’s TRIPS Council was the location of a sustained challenge brought by the Third World to the TRIPS Agreement on account of the Agreement’s effect on the global response to the COVID-19 pandemic. A key element of the Third World’s challenge related to the barriers that TRIPS allegedly raised to vaccine access. This article considers that aspect of the Third World’s challenge by analysing how Third World vaccine production and procurement has been impacted by intellectual property rights universalised in TRIPS, focusing on patents. Alongside this analysis, the article reviews the TRIPS ‘waiver’ which resulted from the TRIPS Council discussions in June 2022. The article identifies a ‘cascade of disadvantage’ faced by the Third World, whereby TRIPS limits the potential for Third World pharmaceutical production, directly and indirectly increases procurement costs through its cultivation of the anti-commons, and has, combined with the effects of the WTO’s Dispute Settlement Understanding, channelled Third World advocacy in the identified period into a ‘waiver’ whose provisions do not meet the Third World’s original demands.