Geneva 2000: The battle of patents vs. affordable medicines

One key issue at the 26 June-1 July Special Session of the UN General Assembly (UNGASS) on Social Development was the right of people to essential medicines at affordable prices, and how this right is being undermined by patents and the intellectual property rights regime established by the WTO’s TRIPS Agreement. Cecilia Oh reports on the debate on this issue at UNGASS and at an NGO event organised in the week of the Special Session.

AT the end of the 24^th Session of the United Nations General Assembly Special Session (UNGASS) in Geneva, governments agreed, after tough negotiations, that they would be allowed to freely exercise options already available to them under international trade agreements to protect and advance access to life-saving and essential medicines.

One could be forgiven for thinking that this was hardly headline-making material. But the negotiations, the trade-offs and the behind-the-scene manoeuvrings that had gone into getting such an agreement do make for interesting reading.

Indeed, the issue of patents and essential medicines became one of the most talked-about and controversial topics among both governments and NGOs at UNGASS.

Governments at UNGASS agreed on a series of actions and initiatives that will take them forward in implementing their commitments made at the World Summit for Social Development in Copenhagen, 1995. One of the more contentious issues discussed at the meeting in Geneva (also called Copenhagen+5) was that of access to essential medicines, with specific reference to the AIDS epidemic.

What was achieved in Geneva?

In terms of real progress in addressing the need of developing countries and poor people’s access to life-saving drugs, not much. In terms of bringing to light the efforts of some of the developed countries in pushing the agenda of pharmaceutical corporations, quite a bit.

The high cost of patented medicines, including those for AIDS treatment, has been a matter of great concern to the developing countries, especially the African countries.
Prior to UNGASS in Geneva, discussions between governments had already taken place in the UN in New York, during the preparatory process. There, developing countries had proposed that countries should be allowed to make use of the existing provisions in the TRIPS Agreement which allow for circumvention of patent rights over pharmaceutical products. This would enable life-saving medications to be provided at affordable cost in developing countries.

Opposing texts

In particular, South Africa had proposed that governments should recognise that ‘intellectual property rights under the WTO-TRIPS Agreement should not take precedence over the fundamental human right to the highest attainable standard of health care’, nor should they take precedence over ‘the ethical responsibility to provide life-saving medications at affordable cost to developing countries and people living in poverty’.

The US and the EU had objected to this proposal. The EU countered the South African proposal with an alternative text, which acknowledged the importance of intellectual property rights, whilst recognising the limited exceptions to normal patent rights that may be used in particular cases, such as that of a national emergency.

Both texts came to Geneva in square brackets, denoting disagreement.

In Geneva, the developing countries in the Group of 77 proposed a new text, which proposed that essential and life-saving medicines be excluded from patentability in order to advance access to such medicines at affordable prices. This text further recognised that intellectual property rights under the TRIPS Agreement should not take precedence over the human right to health care, and the ethical responsibility to provide life-saving   medicines   at   affordable  prices.

Again, the developed countries Ð the US, the EU, Canada, Japan and Australia - objected to this proposal. Their opposition was based on the ground that the exclusion of patentability would reduce incentives for pharmaceutical companies to carry out research and development. The EU thus proposed an alternative text reminding governments of the importance of intellectual property rights for providing incentives for research and development. The EU text, however, did point out the inherent flexibility of the TRIPS Agreement, which could be used to improve access to drugs for developing countries.

Freedom to address high cost

What does this trading of paragraphs between the governments mean? What the developing countries were asking for was the freedom to address the problem of the high cost of life-saving medicines. This could be done through the use of existing provisions in the TRIPS Agreement.

The G-77 position was similar to the stand taken by several NGOs involved in the health, development and human rights fields. One of the more interesting NGO-organised events during the week in Geneva was a workshop on ‘Shameful Profits: AIDS, Drugs and TRIPSÕ, organised by the Norwegian Forum for Environment and Development.

Health NGO leaders, including Zafarullah Chowdury of Bangladesh and Ellen ‘t Hoen of Medecins Sans Frontieres (MSF), expressed outrage at how pharmaceutical companies were making huge profits through patents on their products. Patents are used by these companies to secure monopolies, thus enabling them to charge high prices at the expense of the poor.

‘A question of life or death’

‘Medicines cannot be treated as mere commodities, access to medicines is a question of life or death,’ asserted Ellen ‘t Hoen. During her presentation, she cited several examples of how patenting of drugs has resulted in consumers having to pay exorbitant prices for branded essential medicines, many times more than the cost of generic alternatives.

She also stressed that the proper role of intellectual property protection was to balance the private rights of innovators against the broader interest of the public. In a policy paper for MSF, she advocated that the future review of the TRIPS Agreement should include an exception for essential health care products from patenting. ‘Protecting public health should have primacy over commercial interests,’ she added.

It was clear that the developed-country governments did not share the same view.
During the Geneva negotiations, there were varied attempts by the developed-country governments to de-link human rights (or the right to health) from intellectual property rights and the TRIPS Agreement, including through the use of commas and full stops in the text.

Their attempts to drastically dilute the G-77 position succeeded.

However, the developing countries managed to fight for a compromise text, in which the rights of people to health and the rights of national governments to exercise their options freely within international agreements were affirmed. It may be argued that the G-77 only managed to include what was already within the rights of its member countries. Nevertheless, the explicit stating of these rights and in such manner, was seen by many of the delegations as a moral victory.

The final agreed text is in four separate sentences. The first two sentences affirm the human right to the ‘highest attainable standards of physical and mental health’ and ‘the critical importance of access to essential medicines at affordable prices’.

The third sentence acknowledges the ‘contribution of intellectual property rights to promote further research, development and distribution of drugs, and that these intellectual property rights should contribute to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare’. The EU and the US had insisted on the reference to the contribution of intellectual property rights; however, the G-77 managed to balance this with language on social and economic welfare (which, coming from Article 7 of the TRIPS Agreement, could not be objected to by the developed countries). 

Crucial statement

The final sentence reaffirms that ‘countries may freely exercise, consistent with national laws and international agreements acceded to, in an unrestricted manner, the options available to them under international agreements to protect and advance access to life-saving and essential medicines’.

The G-77 countries saw this as a crucial statement to make because of the negative experience of some developing countries.  The South African government had, for example, recently come under intense pressure from the US when it attempted to introduce national laws on medicines that would have given the government the ability to implement compulsory licensing provisions (which is, in fact, allowed under the TRIPS Agreement). Thus, the references to ‘freely exercise’ and to ‘an unrestricted manner’ were seen by the G-77 as strengthening their right to resist unilateral pressures from the US or any other country when they choose to exercise the right to opt for compulsory licensing and other measures allowed in international agreements (such as TRIPS).

In fact, there is public anger at the double standards applied by the US when it puts pressure on developing countries not to introduce compulsory licensing. ‘The United States laws have very good provisions on compulsory licensing, which are used all the time. Why should the developing countries not be able to use the same provisions?’ asked Ellen ‘t Hoen of MSF.

It may be true that, from a legal point of view, this much-fought-over paragraph may not be much of an advance in the realm of international law, for the interests of the consumer or developing countries. Nevertheless, the process of negotiating the paragraph had served the useful purpose of raising the awareness of both developing-country governments as well as the NGOs on the threat posed by the present intellectual property rights regime to the people’s right to affordable health care.

What can be predicted is the continuing intensification of NGO action to  promote  health  care  above  the corporate ownership of patents. To quote a health activist who was at UNGASS:

’It is no exaggeration to say that hundreds of millions of lives are at stake, given the AIDS epidemic and the resurgence of diseases. It is obscene that corporations can be given patents to make monopoly profits at the expense of these lives. Something has to give. And that something should be the patent regime, and not those hundreds of millions of lives.’