| The
year 2002 ended in a deadlock at the World Trade Organisation
(WTO) as member countries failed to agree on developing countries
access to affordable medicines. The end of 2002 had been set
as a deadline to find a solution for developing countries
without manufacturing capacities. Paragraph 6 of the Doha
Ministerial Declaration on the TRIPS (Trade-Related Aspects
of Intellectual Property Rights) states:
“We recognise
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 instruct the Council for TRIPS to find an expeditious solution
to this problem and to report to the General Council before
the end of 2002”.
When
the new trade round was launched in Doha in November 2001,
the most significant achievement of the round as regards the
TRIPS Agreement was the realisation that WTO members with
insufficient or no manufacturing capacities in the pharmaceutical
sector would have problems making effective use of the compulsory
licensing granted by the Agreement to take care of their health
problems. Compulsory licensing refers to WTO patent rules
that give permission to countries to ignore a patent so as
to allow the production of the patented product in the domestic
market. The Doha declaration was a positive step because it
reaffirmed the use of compulsory licensing to address public
health crises.
US blockage
and EU ambiguity
The
December negotiations on TRIPS were deadlocked largely because
the US was opposed to the idea of allowing developing countries
to import or manufacture generic drugs to deal with public
health crises. While some WTO members, especially developing
countries, were calling for an agreement that would cover
all diseases, the US wanted the diseases covered by the agreement
to be limited to three -- HIV/AIDS, malaria and tuberculosis.
Negotiations have already resumed (January 2003) with a view
to securing an agreement before the WTO General Council meeting
on 10 February 2003. EU Commissioner Pascal Lamy has already
come up with a European Community proposal that he hopes will
break the deadlock.
Lamy
proposes an initial list of diseases to be covered under Paragraph
6 for countries without manufacturing capacities to be able
to import generic drugs. He argues that other diseases that
are not on the WTO list would have to be checked and approved
by the World Health Organisation (WHO). This gives the impression
that the scope of diseases to be covered is not limited, yet
the language used does not explicitly state that thus giving
room to open interpretation. There is no safeguard or any
guarantee that diseases not listed are part of the deal. Even
the idea of going through the WHO to prove that a health problem
exists is unnecessarily cumbersome especially where countries
have to deal with health emergencies.
In
an about turn, the US has said that it will now allow developing
countries to overrule patents on drugs produced outside their
countries to treat HIV/AIDS, malaria and other infectious
epidemics. The climb-down by US must be taken with a pinch
of salt especially given their position in the current negotiations
to establish a Free Trade Area of the Americas (FTAA). US
has been advocating for a much more stringent Intellectual
Property regime which includes amongst other things:
- stopping countries which have licences to manufacture
drugs from exporting them to smaller countries;
- extending patent protection beyond the 20 year limit;
- forbidding countries from revoking a patent.
Essentially what the FTAA
draft does is to strengthen the rights of the patent holders
and give them much more power than that granted by TRIPS.
Put plainly, the US is calling for TRIPS-Plus. Could this
be the same country that is backtracking on its position in
the WTO?
African opposition to dilution
of Doha on TRIPS
Those involved in the TRIPS
negotiations should put the plight of the poor on the top
of the agenda. There is a critical shortage of medicines in
developing countries, and when the medicine is there, it is
beyond the rich of the ordinary person. The World Health
Report (2000) points out that enforcing patent protection
where it did not previously exist will lead to the price of
drugs rising at most by up to 200 percent. The publication
Patents, pills and public health quotes the World Bank
pointing out that full TRIPS implementation will result in
developing countries losing US$20 billion in patent payments.
While companies have a right to sell drugs, the plight of
the poor should take precedence over profits. The recurring
problem with patents especially where drugs are involved is
that it grants pharmaceutical companies a monopoly allowing
them to charge high prices that deny the poor of essential
medicines.
In the first place it was
a mistake to include TRIPS and Public Health in the WTO. For
how does it happen that a forum for trade can sit to determine
the public health needs of nations? There is no evidence that
developing countries have benefited from the promises of technology
transfer or foreign direct investment that were supposed to
materialise with the implementation of TRIPS. Rich countries
under pressure from pharmaceutical companies are now reneging
on the promises that they made in Doha. It has also become
evident that developing countries are either ignorant of some
of the declarations that they sign or are simply overwhelmed.
Developed countries then exploit this to further their own
agendas. Contrary to the Doha spirit, it seems developed nations
are taking advantage of poor countries ignorance and using
steam-roller tactics to achieve foreign policy objectives.
This must come to an end, poor countries should delay signing
agreements that they do not understand or signing away the
rights of their people. On 29 November 2002, the Africa Group
issued a statement expressing disappointment with the way
negotiations were going. There is wisdom in the statement
by the Africa Group that:
Any further engagement in this process must
be meaningful. Further, there is no merit in coming up with
a purported solution that amounts to a step back from Doha
or even that creates further restrictions on the current flexibilities
in the TRIPS Agreement as highlighted in the Declaration.
This position should be
maintained even if it means boycotting or walking away from
the negotiations. The importance of public health over intellectual
property rights is not negotiable.
*Makombe is a Programmer
Officer with SEATINI and Assistant Editor for the Bulletin. |
