WTO: Tripping up on TRIPS

Issue 

BY SEAN HEALY

If there is one issue more likely than any other to spell doom for rich countries' hopes at the World Trade Organisation summit in Qatar, it is Third World countries' access to vital medicines.

Anger in the underdeveloped countries over the issue has been simmering for some time — Western pharmaceutical companies have repeatedly sought to use the WTO's Agreement on Trade-Related Intellectual Property Rights (TRIPS) to prevent poor countries from producing cheap, generic versions of their patented and highly expensive drugs to combat public health disasters, such as the HIV/AIDS pandemic.

But the issue looks likely to boil over, after weeks of intense negotiations failed to produce a final resolution. On October 27, the chairperson of WTO's General Council, Stuart Harbinson, issued a draft declaration on the subject which leaves some of the crucial issues undecided — they will now have to be fought over at the summit itself.

At the centre of the dispute is the desire by many Third World countries, especially Brazil, India and the African countries, to have a statement in the ministerial declaration that "Nothing in the TRIPS agreement shall prevent members from taking measures to protect public health".

Among other things, this would make it explicit that TRIPS cannot be used to prevent countries issuing compulsory licences for the production of generic drugs, and thus overriding patents, when they deem it in the interests of public health.

The US and Switzerland, the homes of the world's largest pharmaceutical companies, backed by Australia and Japan, are intransigent in their opposition, however, and will only allow a statement with highly restricted language.

So great is the gulf that the two sides cannot even come to an agreement on the name of the statement. Harbinson's draft calls it the "Declaration on Intellectual Property and [Access to Medicines] [Public Health]" — as the US and Switzerland believe references to "public health" would extend countries' rights to override patents beyond situations of crisis or pandemic.

Underdeveloped countries are also incensed that the Harbinson draft includes scant mention of two other measures they have long been demanding.

In their joint proposal on TRIPS, 52 Third World countries had argued that, where countries do not have the manufacturing capacity to produce generic drugs themselves, they should be able to licence manufacturers in other countries to do so. The draft text, however, merely instructs the council on TRIPS to come up with an "expeditious solution" to the problem.

Similarly, the Africa Group, the Least Developed Countries and the Like-Minded Group of Third World countries had argued that TRIPS should be "clarified" to prohibit the patenting of plants and animals, micro-organisms and all other living organisms and their parts. The Harbinson text only calls for the Council on TRIPS to "examine" the issue.

The imperialist powers' case has become more difficult to argue, however, after moves by the US and Canada to secure large quantities of the anti-anthrax drug, Cipro, at low cost.

Canada briefly overrode pharmaceutical company Bayer's patent on the drug, using the same compulsory licensing provisions which are under dispute in the WTO, while the US threatened to do so if the company didn't provide the drug at a substantial discount.

Third World governments and public health advocates have pointed out the obvious contradiction: if rich countries can override patents to combat a disease which has so far killed only three people in North America, why can't poor countries do the same to combat a disease which threatens millions?

From Green Left Weekly, November 7, 2001.

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