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Doha Health Declaration may help South

by Chakravarthi Raghavan

Doha, 13 Nov 2001 - The Doha draft declaration on TRIPS and Public Health, if it goes through and is adopted (without being linked to the ministerial declaration for a new round which now faces a cliff-hanger fate), could (and it is no more than could) enable developing countries to take measures to protect public health and ‘promote’ (not assure) access to medicines for all.

As a ‘political declaration’, in effect a WTO political statement asking member governments to go ahead and exercise their rights, perhaps it has some value or gives some encouragement.

After all, according to James Love of the Consumer Project on Technology, the US government last month alone issued some 130 compulsory licences, but no African country has issued one.

To the extent they have not done so for fear of arm-twisting by the major governments or by the pharmaceutical corporations, does this change anything?  This remains to be tested.

And those that have no production or infrastructure to use such a license, but have to get the product from elsewhere, the issue is left open in the sense that the TRIPS Council is to find an ‘expeditious solution’ to the problem recognized by the Ministers here, in para six, namely that those with insufficient or no manufacturing capacities could face difficulties in making use of compulsory licensing.

Can India use this instrument in respect of new drugs, for which it is not yet due to give product patents, but has to give exclusive marketing rights? Does this clear the way, either for Brazil or India? It is not clear at all, excepting that they could claim the moral high ground in doing so.

While probably an advance on the current situation, and though a number of developing countries spearheading this drive, like the Africans and India and Brazil, acclaimed the draft as a ‘victory’, in fact much is going to depend on how they actually invoke it, and how and whether any future disputes will arise and be dealt with by the dispute settlement system of the WTO, which is guided and orchestrated by the secretariat.

The draft declaration has ministers agree that the TRIPS “does not and should not” prevent members from taking measures to protect public health. Statement of fact? Interpretation or a Doha wish?

The next sentence then says “.... we affirm that the Agreement can and should be interpreted and implemented in a manner supportive of WTO Members’ right to protect public health and, in particular, to promote access to medicines for all.”

While an earlier Indian Press release viewed the declaration as a major victory and breakthrough, later Indian Minister Murasoli Maran told the meeting of the COW that ‘can and should’ should be replaced by ‘shall’, citing the ten commandments of the bible ‘thou shalt not...’

The draft declaration also sets out in para 5 some of the existing flexibilities, but in fact none of these are value added. For example, irrespective of the declaration, any dispute about this, where panels have to apply customary rules of public international law, including reading the provisions of TRIPS in the light of object and purposes, in particular objectives and principles.

The problem has been that in interpreting agreements, panels and the Appellate Body have been indulging in citing other parts of an agreement or other agreements that seem to restrict or weigh against the developing world. If a dispute arises now, when the civil society protests centred on major killer diseases like AIDS has mobilised public opinion, panels may bow down to Doha. In a few years time, the issue may be forgotten, and the part of the declaration (para 3) about IPRs being important for development of new medicines will be cited, though the next sentence talks of the concerns about effect on prices.

Thus, at best this enables governments, wishing to act, by taking the high moral ground and dare the pharmaceutical corporations and their backers.

The following is the full text of the new revised draft declaration on the TRIPS Agreement and Public Health:

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

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.

4.   We agree that the TRIPS Agreement does not and should not prevent Members from taking measures to protect public health. Accordingly, while reiterating our commitment to the TRIPS Agreement, we affirm that the Agreement can and should be interpreted and implemented in a manner supportive of WTO Members’ right to protect public health and, in particular, to promote access to medicines for all.

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

5.   Accordingly and in the light of paragraph 4 above, while maintaining our commitments in the TRIPS Agreement, we recognize that these flexibilities include:

(a)  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. (b) Each Member has the right to grant compulsory licenses and the freedom to determine the grounds upon which such licenses are granted. © 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, tuberculosis, malaria and other epidemics, can represent a national emergency or other circumstances of extreme urgency. (d) 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 without challenge, subject to the MFN and national treatment provisions of Articles 3 and 4.

6.   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.

7.   We reaffirm the commitment of developed-country Members to provide incentives to their enterprises and institutions to promote and encourage technology transfer to least-developed country members pursuant to Article 66.2. We also agree that the least-developed country Members will not be obliged, with respect to pharmaceutical products, to implement or apply sections 5 and 7 of Part II of the TRIPS Agreement or to enforce rights provided for under these Sections until 1 January 2016, without prejudice to the right of least-developed country Members to seek other extensions of the transition periods as provided for in Article 66.1 of the TRIPS Agreement. We instruct the Council for TRIPS to take the necessary action to give effect to this pursuant to Article 66.1 of the TRIPS Agreement.” – SUNS5009

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

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