Public Health vs Corporate welfare choices for Doha

by Chakravarthi Raghavan

Geneva, 29 October 2001 - Months of talks and negotiations over the issues of Public Health and access to medicines, that have been affirmed to be a fundamental human right, the United States and its core supporters have refused to yield and place public health of billions across the world above corporate profits of the pharmaceutical corporations.

The negotiations and consultations, by Mr. Stuart Harbinson, have ended in the will of an overwhelming majority of the WTO members for a strong affirmation of the right of WTO members to take measures to safeguard public health and for a decision for interpretation of the WTO agreement on Trade-related Intellectual Property Rights in this light, being thwarted by a small number of industrial countries, seeking to protect monopoly profits of their corporations over people and their health.

While the General Council chair, Mr. Harbinson has been willing to ignore the developing countries in presenting a single formulation on the draft ministerial declaration for a new round with new issues, on this issue of Public Health he has presented clear (US) options for ministers.

The option 1, supported by all the developing countries, and public interest civil society groups says:

“Nothing in the TRIPS Agreement shall prevent Members from taking measures to protect public health. Accordingly, while reiterating our commitment to the TRIPS Agreement, we affirm that the Agreement shall be interpreted and implemented in a manner supportive of WTO Members’ right to protect public health and, in particular, to ensure access to medicines for all.

“In this connection, we reaffirm the right of WTO Members to use, to the full, the provisions in the TRIPS Agreement which provide flexibility for this purpose.”

The second option, insisted upon by the US, Switzerland and a few others would have the ministers say:

“We affirm a Member’s ability to use, to the full, the provisions in the TRIPS Agreement which provide flexibility to address public health crises such as HIV/AIDS and other pandemics, and to that end, that a Member is able to take measures necessary to address these public health crises, in particular to secure affordable access to medicines. Further, we agree that this Declaration does not add to or diminish the rights and obligations of Members provided in the TRIPS Agreement. With a view to facilitating the use of this flexibility by providing greater certainty, we agree on the following clarifications.”

This is a formulation to preserve, and even increase, the scope of the TRIPS, and while seemingly meeting the public concerns, strengthens and reaffirms the corporate rights, and reducing rights of member countries to take actions on grounds of public health, by narrowing it to actions to be taken for ‘pandemics’ which health specialists use to describe a disease that is universal or affecting across countries and continents.

The Harbinson draft, with disagreement even on the title (whether it applies to Access to Medicines or to Public Health, reads:

“1. We recognize the gravity of the public health crises afflicting many developing and least-developed countries, especially those resulting from HIV/AIDS and other pandemics.

“2. We stress the need for the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) to be part of the wider national and international action to address these problems.

“3. We recognize that intellectual property protection is important for the development of new medicines. We also recognize the concerns about its effects on prices.”

After presenting the two options, the text goes on to say:

“5. In applying the customary rules of interpretation of public international law, each provision of the TRIPS Agreement shall be read in the light of the object and purpose of the Agreement as expressed, in particular, in its objectives and principles.

“6. Each Member has the right to grant compulsory licences and the freedom to determine the grounds upon which such licences are granted.

“7. Each Member has the right to determine what constitutes a national emergency or other circumstances of extreme urgency, it being understood that public health crises, including those relating to HIV/AIDS and other epidemics, can represent a national emergency or other circumstances of extreme urgency.

“8. We recognize 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.

“9. The effect of the provisions in the TRIPS Agreement that are relevant to the exhaustion of intellectual property rights is to leave each Member free to establish its own regime for such exhaustion, subject to the MFN and national treatment provisions of Articles 3 and 4.”

“10. We agree that least-developed country Members will not be obliged to implement or apply Sections 5 and 7 of Part II of the TRIPS Agreement or to enforce rights provided for under these Sections with respect to pharmaceutical products until 1 January 2016. We instruct the Council for TRIPS to take the necessary action to give this effect pursuant to Article 66.1 of the TRIPS Agreement.

“11. We agree that, for a period of five years from the date of this Declaration, the provisions of Articles XXII and XXIII of GATT 1994 as elaborated and applied by the Understanding on Rules and Procedures Governing the Settlement of Disputes and as incorporated in Article 64 of the TRIPS Agreement shall not be exercised with respect to any non-discriminatory intellectual property law, regulation or other measure of a developing country Member in sub-Saharan Africa that improves the access of affected populations in sub-Saharan Africa to patented pharmaceutical products used in the treatment of HIV/AIDS and other pandemics.”

These last two paras, presented as a concession to the LDCs and non-LDC sub-Saharan Africa developing countries (by the US, but spurned by them), are in the Harbinson formulation. They are in fact no concession. The automatic extension of transition for LDCs is built into the TRIPS agreement, and the TRIPS Council, on application from an LDC, “shall grant extension”. As for sub-Saharan African, the qualification of ‘non-discrimination’ IPR law in fact is a subjective judgement for a mandatory moratorium idea. – SUNS4998

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

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