 |
|
| Kathmandu, Friday December 27, 2002 Paush 12, 2059. |
|
Enigma of TRIPS and public
health
By RATNAKAR ADHIKARI
The iniquitous nature of negotiations at the
World Trade Organisation (WTO) was cruelly exposed on December 20, 2002, when the
rich member countries of the WTO became successful in blocking the progress on the
negotiations related to Declaration on Trade Related Aspects of Intellectual Property
Rights (TRIPS) and public health agreed by their own ministers at Doha last year. This
Christmas probably witnessed the CEOs of the top multinational pharmaceutical corporations
proposing toast to each other on their victory – being able to keep their balance
sheet straight at the cost of millions of ailing population of the developing countries.
Probably no one on earth would contest the idea
of providing patent protection to innovation. However, one of the most contentious and
hotly debated issues in the TRIPS Agreement is the length of the patent protection (which
is 20 years from the date of filing) and unfettered rights provided to patent holders
without corresponding responsibilities. Abuse of monopoly power, which is inevitable,
takes place when giant multinational corporations (MNCs) charge prohibitively high price
for their medicines even to the consumers of the poorer countries in order to maximise
their profits. Developing countries are then put in a ‘catch 22’ situation
– whether to provide strong patent protection to send ‘right’ signal to the
MNCs (who are their foreign investors too) or to constrain their ability to make profits
on deathbed.
Access to affordable medicine remains the single
largest cause of the death of millions of adults in the developing world. Trade
negotiators of the developing countries had understood the gravity of the problem at the
time of Uruguay Round of Multilateral Trade Negotiations itself. Accordingly, they managed
to incorporate some competition-friendly provisions in the TRIPS Agreement so as to
contain, if not eliminate, the monopoly of the MNCs in general and that of pharmaceutical
MNCs in particular.
Accordingly, the TRIPS Agreement allows the
government to import cheaper versions of generic drugs from outside the country if it has
the reasons to believe that the monopoly of the patent holder has resulted in consumer
exploitation. This exception is known as ‘parallel import’. Similarly, there is
another provision in the TRIPS Agreement, which allows for providing ‘compulsory
license’ to the local companies to manufacture low cost generic drugs if the patent
holder uses the patent only to obtain monopoly rights to sell but not to manufacture
proprietary drug in the country and does not provide license to a willing and able party
to manufacture the same.
However, whenever developing countries have
tried to use these provisions in order to provide cheaper medicines to their ailing
populations suffering from such dreaded diseases as HIV/AIDS, they have always received
threats from the pharmaceutical MNCs and the governments of the developed countries.
Therefore, there was an urgent need to clarify this issue once and for all. Recognition of
this problem led trade ministers of the 142 member countries of the WTO to sign the
Declaration on TRIPS and Public Health in Doha last year.
On paragraph 6 of this very Declaration,
recognising that WTO members with insufficient or no manufacturing capacities in the
pharmaceutical sector could face difficulties in making effective use of this provision,
the ministers instructed the Council for TRIPS to find an expeditious solution to this
problem and to report to the General Council before the end of 2002. Developing countries
proposed that such countries be allowed to import medicines at cheaper prices from other
developing countries capable of manufacturing generic medicines. However, WTO members
could not reach an agreement on this issue in Geneva and neither could the 25 countries
participating at the WTO mini-ministerial meeting held in Sydney in November this year
agree to it. In Sydney members agreed to find an amicable settlement to the impasse during
the General Council meeting planned for December.
Much to the dismay of the developing world, the
much-awaited December meeting, which concluded last week in Geneva could not reach a
consensus. There are clear indications that developed countries, due to pressure from
pharmaceutical lobby, have decided to renege on their earlier commitment. Now the
developed countries, notably the US, the EU, Canada and Switzerland – where most
pharmaceutical MNCs are located – are even trying to limit the coverage of the
diseases (to HIV/AIDS, malaria and tuberculosis) and countries (to least developed
countries and countries classified as low income countries by the World Bank), which could
benefit from this provision. This effectively means that they are trying to exclude
developing countries from having access to affordable generic drugs for asthma and
diabetes and host of other killer diseases.
Therefore, the one-year deadline set for the
negotiations on paragraph 6 of the Declaration ended in a bitter note, with the developed
countries taking adamant position on the disease and country coverage. Even the Director
General of the WTO, for the first time since he assumed office in September this year,
expressed his disappointment over inability of the member countries to reach a consensus
on this critical issue.
The decision on this issue has now been
postponed till the General Council’s next meeting scheduled for 10-11 February 2003.
In the run up to this meeting, developed countries could potentially make use of a number
of dirty tricks, including bilateral pressures and arm twisting to make the developing
countries agree to the formers’ position. This rather long pause will provide ample
opportunity for the pharmaceutical MNCs to intensify their lobbying efforts. It is most
likely that the developed countries will come out with even harder and most offensive
position during the February meeting.
If the developing countries get together and
fight the battle, they will definitely win because they represent 80 percent of the WTO’s
membership. Since the decisions in the WTO can only be made through consensus even a
single country can block the proposal of the developed countries. However, developing
countries have rarely realised the power of unity. As happens quite often, some countries
have already shown the sign of defection.
The role of civil society organisations –
both from the North and the South – is going to be crucial in the coming months. They
should continue the battle from their side through campaign, lobbying and advocacy and
expose the tricks of the rich countries. They should also act as a counterbalancing force
to prevent MNCs from putting profits before people’s lives. If they could help the
tide turn in favour of developing countries, that would be their greatest contribution to
the public health in these countries.
Other Stories
|
