WTO Ministerial Section • Volume 5 • Number 39 • 15th November 2001

TRIPs-Public Health Accord Seen As Bright Spot By Civil Society

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One of the most hard-fought battles pitting NGOs and developing countries against some of the richer WTO Members — that of access to medicines and public health in relation to the Agreement on Trade- related Aspects of Intellectual Property Rights (TRIPs) — has passed a major milestone with the adoption of the Declaration on TRIPs and Public Health at the Fourth WTO Ministerial Conference. Whether the Declaration will actually improve access to medicines, however, will depend on the extent to which developing countries make use of the flexibilities in the TRIPs Agreement, and on the yet to be tested legal strength of the Declaration.

Civil Society welcomes Declaration on TRIPs and Public Health

In what one representative of Oxfam International referred to as a "very welcome, significant shift allowing for the re-interpretation of the TRIPs Agreement", joint efforts by developing countries and NGOs seem to have paid off as WTO Members adopted a Declaration clarifying that "the TRIPS Agreement does not and should not prevent Members from taking measures to protect public health," in particular in relation to access to medicines (see BRIDGES Daily Ministerial Update, 13 November 2001).

According to Mark Ritchie of the Institute for Agriculture and Trade Policy (IATP), "this is the first and so far only real outcome of these talks. And it’s a giant victory for civil society." While Ritchie pointed to the importance of NGO involvement in defeating "the combined power of the global pharmaceutical industry and their allies in the governments of the US, Germany, the UK, Switzerland, Australia and Canada", Michael Bailey from Oxfam stressed the pre-eminent role of developing countries. "NGOs should take their hats off to developing countries for standing firm on this," said Bailey. "The role of NGOs has been secondary in bringing about this political change; our main achievement is probably a contribution to stiffening the resolve of developing countries not to give in to the political pressures they have been under."

Many civil society groups, including the NGO Médecins sans Frontières (MSF), stressed that the consensus expressed by the Declaration on TRIPs and Public Health will force rich countries to "think twice" before attacking poor Members’ public health policies in WTO dispute settlement procedures. This, it is hoped, will work as an incentive for Health Ministries to take the decisions necessary to bring down the cost of medicines and increase access to life-saving treatments without fear of "being dragged into a legal battle."

Some NGOs, however, were more reserved in their embrace of the Declaration. In particular, many voiced disappointment that Members had missed the opportunity to resolve the question of imports of generic medicines for countries that do not themselves have the manufacturing capacity to produce such drugs. [According to Par. 6 of the Declaration, this question was referred to the TRIPs Council, which was instructed to report to the General Council by the end of 2002.] Others said that although the Declaration meets developing countries demands as formulated in the run-up to Doha, the final provisions constitute a very ‘watered down’ version of their initial demands. Some also criticised the absence of legally binding language in the Declaration.

Other civil society concerns

Civil society groups have also voice concerns regarding the newly adopted Ministerial Declaration, and other issues discussed at the Conference (see also BRIDGES Monthly, October 2001).

Regarding the Ministerial Declaration, the NGO ‘Focus on the Global South’ pointed out that the text continued to be highly detrimental to the interests of developing countries, in that it relegates developing country issues such as implementation to the margins. The Thailand- based NGO also noted its disapproval of what it perceives as an open door contained in the Ministerial Declaration to expand WTO jurisdiction to issues such as labour standards — an issue it contends should be dealt with outside the WTO through an organisation such as the International Labour Organization (ILO). These sentiments were echoed by a group of nine NGOs from various African and Asian countries which condemned attempts to re-introduce core labour standards in the WTO negotiations. "Why do they [the EU and other supporting countries] think that one size can fit all", the coalition asked. "Their issues are entirely different from our issues… In our case… it is not the matter of choosing the best work conditions. It is a matter of subsistence and livelihood."

Reacting to the outcome of the Ministerial Conference, IATP’s Trade Director Sophia Murphy labelled the final agreement as a "Corporate Development Round" that was very "friendly to corporate interests." "Development Round?" said Murphy. "Well I think we certainly will see developments, but I don’t think it will be economic growth in developing countries, let alone any shift to rebalancing our increasingly distorted global economic system, where a smaller and smaller number of people are getting richer and richer."

Despite various development-related provisions (see related story, this issue), some developmental NGOs were extremely critical of the final Declaration. Third World Network in a statement said that from a development perspective the document "is even more unfair and biased against developing countries [than the draft that fed into Doha]. Adopting it will mean a surrender to the designs of the EU, US and other developed countries for their firms and products to take over the business of local firms in developing countries."

On civil society events during the Ministerial Conference, see related story, this week.

"Afro-Asian NGO Coalition condemns the reintroduction of labor standards on the ministerial agenda," PRESS RELEASE, 12 November 2001; "WTO Declaration on TRIPs and health: the fight is not over," PRESS RELEASE, 13 November 2001; "Day four - hot and sweaty in Qatar," IATP, 13 November 2001; "Revised Ministerial draft Declaration: still harmful to interests of developing countries," FOCUS ON THE GLOBAL SOUTH, 13 November 2001; "Views on the draft Declaration on the TRIPs Agreement and public health," FOCUS ON TRADE, 14 November 2001; ICTSD Internal Files.