WTO to discuss TRIPS, health and affordable medicines

by Chakravarthi Raghavan

Geneva, 5 Apr 2001 - - The June meeting of the TRIPS Council is to have a special discussion on the issues raised by the WTO’s TRIPS Agreement - for clarifying and interpreting the relevant provisions of the agreement and the flexibility available to members, as well as the relationship between TRIPS and affordable access to medicines.

The new chairman of the TRIPS Council, Amb. Boniface Guwa Chidausiku of Zimbabwe, is to consult on the specific issues to be listed for the ‘Special Discussion’ - a terminology adopted at the instance of the US and EU (in earlier informal consultations) who did not like ‘Special Session’ of the TRIPS Council, and as EU put it the connotation that it carried .about negotiations (ala Special sessions on Agriculture and Services)

The Council discussed Wednesday afternoon and this morning the proposal of the African Group for a Special session on this question, and discussions that could feed into the preparatory process for the 4th Ministerial Conference of the WTO at Doha.

The fact that this issue has taken central stage, and is now coming into the WTO, whose TRIPS agreement has been largely written in the Uruguay Round to serve the interests of the transnational pharmaceutical firms, has clearly unnerved the international pharmaceutical lobby, which has been holding seminars and meetings with WTO members - trying to argue against compulsory licensing and other initiatives to cut prices of medicines and bring them within the reach of the poor.

[But the pharmaceutical lobby got a shot in the arm from the UN Secretary-General Kofi Annan who issued a statement in Amsterdam, fully supporting the TRIPS Agreement and its safeguards. The statement comes at a time when there is such division on what the TRIPS safeguards mean, and in the context of disputes being raised in relation to TRIPS at the WTO, by the US and others.

[Annan issued the statement after a meeting with six ‘leading research based pharmaceutical companies’ (according to a UN press release) along with WHO Director-General Mrs Gro Harlem Brundtland. In the UN press release, Kofi Annan said he had called the meeting over the AIDS which had become “my personal priority”, and the pharmaceutical industry was playing a crucial role. Annan applauded the contributions of the NGOs, and then added: “Intellectual Property Protection is key to bringing forward new medicines, vaccines and diagnostics urgently needed for the health of the world’s poorest people. The UN fully supports the TRIPS agreement - including the safeguards incorporated within it.” But the solution did not lie with the pharmaceutical companies alone, but needed political will and additional funding, he added.

[Annan said that among others, the companies he had met had agreed to continue and accelerate reducing prices substantially, with special emphasis on the least developed countries, “continue” to offer affordable medicines to other developing countries.”]

The discussions at the Council showed wide support to the African move from the developing countries, with the US and EC also coming out in support, but trying to link the issue of access to medicines at affordable prices to other issues, including education, health infrastructure in countries.

However a number of developing countries made clear that they want the discussions to be confined to TRIPS issues, and not other questions to be addressed elsewhere, and that AIDS was only one of the diseases and issue of accessible medicines at affordable prices related to wider public health issues and problems.

Among those who spoke and gave full support to the African initiative, and making clear they hoped it to lead into the Doha meeting and enable solutions were Brazil, Venezuela (for the Andean group), India, Cuba, Argentina, Rumania (for the Central European countries), the ASEAN, South Africa, Morocco, Australia, Turkey, Jamaica, Egypt.

The African Group statement was made at the TRIPS Council Wednesday by Mr. Tadeus Chifamba for Zimbabwe (see SUNS #4870).

The United States agreed with the African group that the time had come to address an issue on which there was a raging debate outside. The US then spoke of the initiatives taken by the US, including the announcement by President Clinton last year, reiterated by Bush this year, namely, that the US would not take action against countries using the flexibility allowed under TRIPS (for providing AIDS medicines) so long as the countries abided by the TRIPS.

Brazil said that the WTO had to send out a clear message that “we are not part of the problem, but rather part of the solution.”

Supporting the African statement, Brazil said the African Group had all the legitimacy and credibility to present the proposal for a Special Session of the TRIPS Council to address the issues relating to TRIPS, patents and access to medicines. The AIDS pandemics in Africa and in other developing countries was not a new phenomenon. Other topical diseases were also known to constitute a major health problem in developing countries. The interest of public opinion in the implications of patents over health policies was not new either, “but recent events in this area seemed to flare up discussions in the international press and among active NGOs, such as M=82decines Sans Fronti=8Ars, the Quakers and Oxfam.”

“The TRIPS Council cannot remain silent on these matters.”

The WTO, however, was starting sadly late to discuss the issue. Other international organizations within their own mandates and policy objectives “have given far more attention to the implications of TRIPS Agreement on access to drugs than the WTO itself.” Brazil cited in this connection the WHO addressing the interface of IPRs and health on several occasions, and the WHO’S more recent ‘interesting document’ on Globalization, TRIPS and access to Pharmaceuticals.

Wholeheartedly supporting the initiative of the African Group to convene a Special Session of the TRIPS Council to discuss access to medicines. Brazil said it was aware that IPRs were only part of the discussions in this area. Other elements could also play a considerable role in preventing access of pharmaceuticals and ensuring effective health policies.

However, “the role of the WTO is not to establish health policies,” Brazil said.

“Our mandate is discuss trade-related intellectual property rights. Given that the exclusive rights provided by IPRs do not exist in a vacuum and must serve a social purpose, Members must ensure that nothing in the TRIPS Agreement will prevent countries to implement sound health policies.

“Discussions on access to medicines will demand both a systemic and a pragmatic approach, in order to consider all the possible solutions to eliminate obstacles imposed by the IPR system on access to pharmaceuticals. In the special session, Members of the TRIPS council should engage in an honest and responsible discussion on the existing flexibilities in the TRIPs Agreement.

“More importantantly, Brazil is of the opinion that delegations should consider carefully the extent to which developing countries are able to use the socalled flexibilities in TRIPs. In our view, one of the most question we should ask ourselves is: can we actually make use of these flexibilities.”

The discussions, Brazil said, must be results-oriented. While members should not provide false expectations to public opinion and should always set realistic goals, “we also believe that the WTO should send an unambiguous message that we are not part of the problem, but rather part of the solution.”

Venezuela for the Andean Group supported the African initiative.

South Africa said that the African call for a special session was based on an assessment of where the patent regimes, those established under TRIPs, were likely to have a negative impact. Development in the global economy, especially as they related to health, confirmed that their assessment was correct and intended to prevent exactly what was happening outside the organization, South Africa added.

The situation regarding health and access to drugs was worsening in many developing countries, especially in Africa. There were increasing efforts by governments, the private sector and the intergovernmental institutions to address the problem. The international community was today well disposed to addressing these issues decisively and thus the environment was conducive. The WTO was uniquely placed to make a contribution to seeking solutions, more so in view of the upcoming ministerial conference in Doha.

In its intervention, India said Africa had the legitimacy and credibility to raise the issue and the TRIPs council had to respond to the African initiative.  India referred to the TRIPS Art.VIII, relating to principles of the agreement and its references to public health. The discussions in TRIPs Council should be on issues relevant to TRIPs and support what could done, and not get into the issues like infrastructural problems.

The special meeting in June should be the first of a series of meetings that should lead to Doha.

In supporting the African initiative, Argentina responded to the suggestion of  some that the discussions should be to hear the views of members on how they  understood flexibility and the extent available and said the Council could  expect to hear 140 interpretations of flexibility. What was needed was a clear  indication from the Council on what could and should be done. There should be an  effort to clarify matters to enable ministers at Doha to address the issue. –SUNS4871

The above article first appeared in the South-North Development Monitor (SUNS) of which Chakravarthi Raghavan is the Chief Editor.

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