By Gustavo Capdevila
GENEVA, Jun 24 2002 (IPS)

Prominent non-governmental organisations upbraided rich countries for failing to live up to their commitments in the World Trade Organisation (WTO) to help people in poor countries gain access to affordable medicines.

The United States and much of the global pharmaceutical industry “have argued instead for the weakest possible solution,” said Ruth Mayne of the British-based humanitarian relief organisation Oxfam International.

The other groups that issued the communique were Medecins Sans Frontieres, the Third World Network, and Consumer Project Technology.

The statement revived the debate on health and trade, which in recent years has put developing countries and civil society groups at loggerheads with industrialised nations and the drug industry.

Mayne noted that 14,000 people a day die of avoidable infectious diseases, and she underlined that a large portion of those deaths could be prevented if affordable drugs were available.

The conflict over poor countries’ access to cheap medicines peaked a year ago, when 39 transnational pharmaceutical companies dropped a patent infringement lawsuit against the government of South Africa.

A campaign spearheaded by South Africa, Brazil and India, with the support of international civil society organisations, secured approval of two explicit declarations on trade and health at the fourth WTO ministerial conference held last November in Doha, the capital of Qatar.

On that occasion, the ministers approved a clause stating that “We recognise that under WTO rules no country should be prevented from taking measures for the protection of human, animal, or plant life or health.”

The second declaration adopted in Doha recognised that “WTO members with insufficient or no manufacturing capacities in the pharmaceutical sector could face difficulties in making effective use of compulsory licensing under the Trade-Related Intellectual Property Agreement (TRIPS).”

Compulsory licensing allows governments to authorise local companies to manufacture generic versions of patented drugs, and to import cheap drugs.

The Doha declaration instructed the WTO council on TRIPS “to find an expeditious solution” by the end of the year to the problem of countries that face difficulties in resorting to compusory licensing.

The four NGOs proposed that the WTO should allow countries to use one of the existing exceptions to patent rights to export medicines and health-related products to other countries.

The limited exceptions to patent rights are outlined in article 30 of the TRIPS agreement, which has already been invoked by an industrialised country, Canada, “to allow a generic drug manufacturer to export its product to other jurisdictions where patent protection was not in place,” said James Love, of the U.S.-based Consumer Project on Technology.

An even “broader use of article 30 was proposed in the United States,” in response to last November’s anthrax-by-mail crisis, “to allow generic companies to export medicines or other health care products that are needed to address global public health emergencies,” he added.

But the George W. Bush administration and the Association of the British Pharmaceutical Industry, which represents drug giants such as Pfizer, GlaxoSmithKline, Bayer, Aventis, Astra Zeneca and others, propose that waivers be issued only in cases of disputes triggered by compulsory licensing.

But “a waiver would only be a temporary measure, would have to be reviewed annually which would deter governments and companies from using it, and would waste a unique political opportunity to get a permanent solution,” said Ellen t’Hoen, of the Paris-based Medecins Sans Frontieres.

Cecilia Oh, with the Malaysia-based Third World Network, called on the TRIPS council, which is meeting this week in the WTO in Geneva, not to merely seek a short-term solution, but to come up with a format that would guarantee affordable medicine supplies in the medium to long-term.

The viability of regional markets should be explored with that aim, said Oh.

Developing countries will submit to the TRIPS council at least two initiatives aimed at resolving the shortcomings of compulsory licensing.

The bloc of African nations is pushing for the adoption of several simultaneous provisions, which include the same exceptions as article 30.

The African delegations also back the idea of modifying TRIPS article 31, which regulates the use of patents without the authorisation of patent-holders.

Another group of developing countries, which includes Brazil, Bolivia, China, Cuba and Venezuela, suggests resolving the problem by more effectively employing the exceptions outlined in article 30.

The European Union, meanwhile, announced that it would present an initiative that would add to article 31 a “clearly circumscribed exception to the restriction imposed in the text so that compulsory licences may be used…in order to address public health needs,” the statement explained.

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