TRIPS: will the majority prevail?

NGO statement on ministerial declaration on TRIPS and public health: the bottom line
We call on the WTO Members at the Doha Ministerial Conference to endorse an interpretation of the TRIPS Agreement that protects public health. This declaration will determine whether people living in developing countries will be supported in measures to gain access to life saving drugs. We support the leadership declared by the 71 countries of the African, Pacific and Caribbean Countries, that the Ministerial Declaration on the TRIPS Agreement and Public Health must state that "nothing in the TRIPS Agreement shall prevent governments from taking measures to protect public health". Given the support among Latin American and Asian countries, it is clear that the majority of WTO Members now support this proposal. At a minimum, the declaration on TRIPS and Public Health should affirm the following points:
  • nothing in the TRIPS Agreement shall prevent governments from taking measures to protect public health,
  • governments have the right to grant compulsory licences and determine the grounds on which these licences can be granted,
  • countries have the right to export medicines under Article 30 of the TRIPS for any valid public health purpose, to ensure that all countries can benefit from compulsory licences, including those without manufacturing capacity,
  • parallel imports are allowed under the TRIPS Agreement and there should be no conditionalities or limitations on the rights of WTO Members to take such measures
  • an extension of five years and ten years of the deadline for implementing patent protection for healthcare products and processes for developing countries and least developed countries, respectively. This extension would operate without prejudice to least developed countries’ rights to further extensions under Article 66.1. A declaration that excludes any of these points calls TRIPS into question. Without a strong declaration on TRIPS and public health, countries will be asked to implement intellectual property rules that harm the public health. This is unacceptable. Language to be avoided in the Declaration on TRIPS and Public Health includes:
  • restricting country use of safeguards to the presence of "public health crises" and to the presence of specific pandemics—excluding conditions like cancer, pneumonia, and asthma—requiring developing countries to react only when a public health problem has already become a crisis.
  • a moratorium on dispute settlement, which can only be applied in extremely restrictive circumstances. The current draft Declaration language, for example, declares a moratorium only for sub-Saharan Africa developing countries in connection with patented medicines that are used in the treatment of HIV/AIDS and other pandemics. We urge the developed countries, particularly the United States, Japan, and Switzerland, to withdraw their opposition to developing country proposals. We also call on the EU to stop shirking its responsibility in taking the so-called 'middle ground' in this debate. Instead of demonstrating its support for the developing countries, the EU has chosen to play the role of an 'honest broker' to bridge the difference between the developing countries and the US-hardline position. The EU has to choose its side now—either there is a clear statement on the primacy of public health, or there is not.