WTO needs reminding we all deserve health care
12 November 2001
Governments from around the world are now meeting in Doha, Qatar at the 4th Ministerial Conference of the World Trade Organization. One of the most contentious issues being debated is the WTO's agreement that affects patents on medicines. It is crucial that the WTO meeting issue a Ministerial Declaration that affirms, without reservation, that this trade agreement shall not be interpreted or used in a manner that prevents countries from taking measures to protect public health or the human right to health. But these discussions have received very little attention, even though they will have a significant impact on the lives and well-being of millions of people. Even less attention has been paid to the role that Canada is playing in blocking efforts to ensure access to affordable medicines in the poor and developing countries of the world. Poor countries desperately need to make medicines for deadly diseases such as HIV/AIDS, tuberculosis, and malaria more affordable. One-third of the world's people lack access to the most basic essential drugs. In the poorest parts of Africa and Asia, this figure is one-half. A number of new medicines vital for the survival of millions are already too costly for the vast majority of people in poor countries. Strictly defending pharmaceutical companies' monopolies through patents is already a barrier in many places to accessing affordable medicines. But the Agreement on Trade-Related Aspects of Intellectual Property Rights (the "TRIPS Agreement") requires all WTO member countries to implement rules on patents (including patents on pharmaceutical products and processes) like those in rich, industrialized countries, regardless of an individual country's level of development or its health needs. This includes 20 year market monopolies, and restrictions on the legal measures countries can adopt to get access to cheaper medicines for people. And unless action is taken now, the situation could get even worse in the years to come, as the TRIPS Agreement will apply to an even greater number of poor countries currently exempt. This is why it is so critical that the WTO countries address the impact of this agreement to ensure that it does not hinder poor countries' access to affordable medicines. This is why over 77 countries, predominantly developing and "least-developed" countries, have put forward reasonable, carefully-considered proposals for a "Doha Declaration" by the WTO ministers that will "clarify" that nothing in the Agreement "shall be used to prevent countries from taking measures to protect public health." But a handful of rich countries like the United States and Switzerland have refused to accept these proposals. And Canada has supported their counter-offensive, all the while claiming that the TRIPS Agreement already contains "adequate flexibility" to address developing countries' health needs. The experience so far indicates otherwise. In some cases the Agreement has been interpreted narrowly, disregarding that it clearly states that countries must be allowed to balance patent rights against other important interests, including protecting "public health." Canada recently had to amend its patent laws for medicines because of such a WTO ruling. Even when countries' take steps that do conform to the TRIPS Agreement, they have faced tremendous pressure from some rich countries (particularly the United States) and a very powerful pharmaceutical industry lobby. The TRIPS Agreement gets invoked even when it has no application. One recent example is the court action by 39 pharmaceutical companies against the government of South Africa. For over three years, with the help of trade pressure from the US government, the companies held up legislation that would make medicines more affordable, before finally capitulating earlier this year in the face of a worldwide public outcry. In the interim, how many tens of thousands died? If the Government of Canada truly believes that the TRIPS Agreement is flexible enough to allow countries to respond to their public health needs, why does it continue to oppose a clear statement by the WTO Ministers confirming that nothing in the Agreement shall be allowed to block measures to protect the public health? We do not oppose patents per se. Real innovation deserves to be recognized, protected and encouraged. But patents, and the high profits they have generated for pharmaceutical companies, are not ends in themselves. Patents are public policy tools, means to the end of benefiting society as a whole. The very purpose of patent protection is defeated if the system prevents those benefits from reaching the vast majority of the world's people who need them. Africa and Asia, which have 75% of the world's population, account for less than 10% of the global pharmaceutical market. Sub-Saharan Africa, the region currently most devastated by the HIV/AIDS epidemic, represents little more than 1% of the total global sales of medicines. Allowing developing countries to put reasonable limits on the patent rights of pharmaceutical companies (which already has the highest profit margins of any industry) will have little impact on overall company profits or on research and development. But it will protect the dignity and human rights of millions of poor people. Canada can and should support developing countries' efforts at the WTO to ensure an interpretation of international trade agreements that does not block access to affordable medicines. Richard Elliott is a lawyer with the Canadian HIV/AIDS Legal Network. This piece is written on behalf of Médecins Sans Frontières, Canadian HIV/AIDS Legal Network, Oxfam Canada, Canadian Treatment Action Council, the Interagency Coalition on AIDS & Development, and the Canadian Council for International Cooperation.