[Peace-discuss] Fwd: Briefing on access to medicines

[Al Kagan]

Here is a follow-up on the WTO Qatar meeting, as we discussed at the 
ending of the teach-in.  You will see that although we had victories, 
it is not that clear about how much was won.


>Delivered-To: akagan at alexia.lis.uiuc.edu
>Date: Fri, 14 Dec 2001 12:54:36 -0500
>From: woa at igc.org
>Reply-To: woa at igc.org
>Organization: Washington Office on Africa
>X-Accept-Language: en
>To: "akagan at uiuc.edu" <akagan at uiuc.edu>
>Subject: Briefing on access to medicines
>Status:  
>
>Dear friends on the Washington Office on Africa's Rapid response
>Network,
>
>I want to provide you with a review of several decisions at the recent
>WTO meetings at Qatar that relate to our work at WOA.  These are subject
>to varying interpretations, and I ask that you keep in mind that the
>views I share here could benefit from further discussion!  But, I do
>want to flag several items on affordable access to medicines, especially
>as applied to AIDS in Africa, and the application of intellectual
>property rights (TRIPS) to support or obstruct such access.  As you will
>recall from previous action alerts over the last several years, this is
>the issue in which WOA has been engaged most extensively.
>
>A clarification that would enhance access was key to the agenda of the
>Africa Group at Qatar.  They sought a declaration that "the TRIPS
>Agreement shall not prevent members from taking measures to protect
>public health."  The US fought against this declaration, and the result
>was a statement that said that "the TRIPS Agreement does not and should
>not prevent Members from taking measures to protect public health."  The
>relevant paragraph went on to say that "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."
>
>This statement has been celebrated by many as an important step forward,
>and perhaps it is.  I am very wary.  At the same time, I acknowledge
>that strategically we could claim that it does that which I am not
>convinced it does, namely legally permits an African nation to take
>steps to secure or manufacture quality medicines at cheapest prices from
>generic sources, and thereby perhaps discourage the US in particular
>from challenging such steps.  Here are details about what the
>declaration says, and some of my concerns:
>
>(a) Fundamentally, why should the US work so hard - as it did - to
>prevent the simple sentence cited above, that TRIPS "shall not prevent
>Members from taking measures to protect public health" if saying "does
>not and should not" does not mark a substantive difference?  To say that
>the US did not want to establish a new right beyond TRIPS but rather
>wanted to acknowledge that TRIPS already allows access actually
>demonstrates the point, that TRIPS as presently constituted leaves the
>right to access open to interpretation, and that the US did not want
>legal clarity that African nations could legally give priority to public
>health over drug patents without fear of challenge.
>
>(b) "Shall" is seen as legally binding.  "Does not and should not" is a
>statement of perception that does not carry legal connotations.  What
>then of the additional sentence, that "the Agreement can and should be
>interpreted and implemented in a manner supportive of WTO Members' right
>to protect public health"?  "Can" arguably gives an African nation the
>legal right to interpret TRIPS in a way that permits access.  But what I
>have also heard is that while "can" may confer legal rights to take
>steps to secure medicines, it also means that other nations - perhaps
>the US - "can" interpret TRIPS in other ways.  If that is so, then an
>African nation's initiative could still be challenged.  (It has been
>suggested to me that it would be so against the US interest to do so
>that the US would not in fact do so.  I hope that is true.  But I also
>recall that the US and the pharmaceutical industry sought to portray
>their challenge against Brazil over AIDS medicines as other than a TRIPS
>issue.  Thus while the US might find it diplomatically unwise to
>challenge an African nation over TRIPS, it may be willing to take a
>particular action on by claiming that the action addressed different
>trade issues.)
>
>(c) There are some encouraging statements in the Qatar documents about
>the present "flexibility" of TRIPS to address public health that are
>generally consistent with what the advocacy community has been saying
>for some time (right to grant compulsory licenses, AIDS as a national
>emergency, and so on).  I was interested - and will want to read more
>about - its statement that each Member is free to establish its own
>regime for "exhaustion" of intellectual property rights "without
>challenge."  Exhaustion refers to the point at which a patent holder's
>control over a drug has been "exhausted."  For example, if a patented
>drug is sold by a US company to, say, South Africa, at a special cheap
>rate, has the company's control over the drug ceased, so that whatever
>South Africa did with it - sold a supply to Zambia, say, at an even
>lower price - is a matter for South Africa and Zambia alone, since the
>company's patent claims have been exhausted?  Or, alternatively, does
>the patent stay with the company through repeated sales or transfers,
>meaning they could continue to control distribution of the drug around
>Africa on their terms?  We have not heard a lot about exhaustion, but it
>has been a matter of serious concern to pharmaceuticals.
>
>(d) It has always been recognized that the capacity of some African
>nations to take advantage of compulsory licensing for drug access is
>severely limited, meaning that no matter how TRIPS provisions are
>interpreted, some African nations lack the manufacturing capacities to
>produce drugs.  Some press reports from Qatar suggest that this matter
>has been addressed.  It has not.  What the declaration says is that this
>is a problem, and that the WTO's Council for TRIPS should "find an
>expeditious solution."  This is a serious issue, for there is legitimate
>debate as to whether, say, Kenya - which has an established
>pharmaceutical industry - could *export* drugs to other African
>countries or could only manufacture drugs under compulsory licensing for
>its own domestic use.  Note that this is a different issue from (c)
>above, which refers to patented drugs marketed, perhaps at special
>rates, by pharmaceutical companies, while this refers to generic drugs
>manufactured under compulsory licenses.
>
>(e) The US sought to limit the declaration to pandemics rather than to
>speak of public health generally, but this effort failed.
>
>(f) Here is the link for the Declaration on the TRIPS Agreement and
>Public Health that came out of Qatar:
>http://www-heva.wto-ministerial.org/english/thewto_e/minist_e/min01_e/mindecl_trips_e.htm
>
>I hope this helpful.  With best wishes.
>
>Yours,
>Leon

-- 


Al Kagan
African Studies Bibliographer and Professor of Library Administration
Africana Unit, Room 328
University of Illinois Library
1408 W. Gregory Drive
Urbana, IL 61801, USA

tel. 217-333-6519
fax. 217-333-2214
e-mail. akagan at uiuc.edu