Health declaration gives green light to put public health first

by Kanaga Raja

GENEVA: The 142 Member countries of the WTO, meeting at the 4th Ministerial Conference, have adopted a declaration on TRIPS and public health that clearly affirms that governments are free to take all necessary measures to protect public health, according to several NGOs.

Medecins sans Frontieres (MSF), Oxfam, Third World Network, Consumer Project on Technology, Consumers International and Health Action International, in a joint statement, have said that now, if drug companies price drugs beyond the reach of people who need them, governments can override patents without the threat of retribution. (The full text of the joint statement is reproduced in this issue’s “For the Record”.)

“The huge profile given to the issue changes the political climate, building on the victories in the South Africa and Brazil cases,” says Michael Bailey of Oxfam.

He added that although the NGOs would have liked to see stronger wording, the declaration “does have a clear political statement that public health concerns must override commercial interests.”

Ellen ‘t Hoen of MSF says, “Countries can ensure access to medicines without fear of being dragged into a legal battle. Now it is up to governments to use these powers to bring down the cost of medicines and increase access to life-saving treatments.”

According to the NGOs, the declaration on TRIPS and public health adopted on 14 November in Doha clearly recognizes the potentially lethal side-effects of the TRIPS Agreement and gives teeth to measures that countries can use to counteract them.

These measures, the NGOs point out, include the right to grant compulsory licences (overriding patents) and the freedom to determine the grounds upon which such licences are granted.

The NGOs say that the Doha declaration acknowledges that these options are not limited to emergency situations. However, if countries do declare an emergency, they can issue compulsory licences without prior negotiation with the patent owner. It is countries themselves that determine what constitutes an emergency situation, the NGOs underline.

Moreover, the NGOs point out that the declaration also leaves countries the freedom to decide on their own rules for implementing parallel imports. Parallel importation allows a country to shop around for the best price of a branded drug on the global market.

The NGOs emphasize that the least developed countries (LDCs) were given a 10-year extension to comply with the TRIPS Agreement, meaning that the deadline for compliance for LDCs is now 2016 at the earliest.

“The Doha declaration is a road map for using the flexibilities of the TRIPS Agreement to protect public health,” said James Love of Consumer Project on Technology. “It sets the standards to measure any bilateral or regional trade agreement,” he adds.

According to Cecilia Oh of Third World Network, “Doha is a major advance in rebalancing the TRIPS Agreement. The  next  step is  to  ensure that next year’s scheduled review of TRIPS takes a hard look at what kind of patenting is really suitable for developing countries.”

However, the NGOs also highlight a big disappointment in that the meeting failed to resolve the issue of where countries with insufficient or no manufacturing capacity for pharmaceuticals will obtain drugs under a compulsory licence. According to the NGOs, the developing countries had asked the Ministerial Conference to authorize the export of medicines under Article 30 of the TRIPS Agreement (on limited exceptions to patent rights), but the conference has deferred the issue to the TRIPS Council, which is instructed to find a solution before the end of 2002. (SUNS5011)