The
declaration on Trade-Related Intellectual
Property Rights and Public Health, though
not officially titled so, is a key issue at
the Doha meeting of the World Trade Organization. "If
it turns out that it's not possible here to
achieve meaningful declaration then all this
talk about how the TRIPS agreement is flexible
and balanced will be very difficult to maintain," said
Ellen 't Hoen from Medecins Sans Frontiers. "If
even on these fundamental issues they can't
reach an agreement then it is clearly not
balanced. I think that this will mean there
will be pressure on Members to ensure its
legitimacy.
Access
to medicines is a major concern for developing countries,
most of which do not have drug-producing capacities.
Under the current TRIPS agreement, new drugs are patent
protected for 20 years. Pharmaceutical companies, mainly
in developed nations, can charge exorbitant prices
for basic life-saving drugs. On September 19, over
50 developed countries, led by the Africa group, put
forth a proposal to the TRIPS Council on improving
access to medicine. Some developed countries, led by
the United States and Switzerland, put forth a counter
proposal diluting the language presented by developing
countries. The resultant draft declaration on TRIPS
and Public Health has taken a combination of the two
proposals in an attempt to compromise.
There is now contention over paragraph four of
the draft, which defines the circumstances that
warrant the use of flexibility mechanisms in the
TRIPS agreement. The flexibility mechanisms include
the compulsory licensing clause, which can be used
in national emergencies. There are two options
in the draft - Option 1, which reflects the position
of developing countries and Option 2, which reflects
the position of the US, Switzerland, Japan and
Canada among others.
"Nothing in the TRIPS Agreement shall prevent
Members from taking measures to protect public
health," states Option 1. "This option
has clear language that makes total sense," said
Hoen. "Also, as the World Health Organization
has stated this week, access to health, access
to medicines is a human right. How can countries
fulfill their obligations to protect human rights
if they can't take those measures? How can TRIPS
take those obligations away?"
Option 2, on the other hand, states: "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." The
language of this option keeps the draft closer
to the original agreement because, say some delegates,
the US and others are concerned that Option 1 presents
a risk that the flexible mechanisms will be abused.
Phil Twyford, Advocacy Director
for Oxfam International, disagrees, saying that
there are sufficient safeguards
in the agreement to protect against indiscriminate
use of paragraph four if Option 1 goes through.
India, which has taken a lead role for TRIPS and
Public Health, has a similar stand. "We believe
that there should be a political declaration that
says that nothing in the agreement should stop
a member country from protecting its public health
concerns or ensuring affordable access to medicines
for all," said Shipra Biswas, Information
Officer for the Indian Ministry of Commerce.
On Sunday the working group, or "Friends
of the Chair" group, on TRIPS met for the
first time. A smaller group, composed of eight
nations including the United States, broke off
in the evening to tackle the issues and look for
an agreement. An agreement may be possible soon
given the necessity for a conclusive result on
TRIPS to ensure success at this Ministerial.
"TRIPS has become a sort of acid test as
to whether rich countries are willing to compromise," said
Twyford. "It will really undermine confidence
in the WTO as an effective forum if it's unable
to come to an agreement."
The European Union is a key player in the discussions
because it has not taken sides in the disa-greement.
The UK and Germany are supportive of the pharmaceutical
position, while other members including Holland
are supportive of Option 1. Ultimately, however,
the EU will vote as one body.
At the end of the day on Sunday, there were reports
that an agreement on TRIPS was close. Of course,
11th hour negotiations may change everything-or,
in this case-five in the morning negotiations
|
