WTO fails to deliver agreement on drugs
by Babette Stern (The Guardian Weekly) 

Deal on cheaper medicines to combat diseases in South stumbles over
list of epidemics covered
Babette Stern

It has taken a little more than a year for the "spirit of Doha" to
vanish  without trace. The trade negotiations successfully concluded
after hard bargaining in the Qatar capital, Doha, in November 2001 were
dubbed "the Doha development agenda" because of the progress made in
favour of the poorer countries, particularly regarding access to cheap
medicines.

All that remained was to define the mode of enforcement of the
agreement on "trade-related aspects of international property rights"
(Trips), whose deadline was the end of 2002.On December 20, after three
days of negotiations in Geneva, the 144 member countries of the World
Trade Organisation failed to reach a consensus. A lot was at stake for
the poor countries: the aim was to establish clearly a system of
exemption from patent rights that would enable countries with no
pharmaceutical industry to import copies of medicines in order to deal
with the most deadly epidemics, the worst of which is Aids.

  The Doha agreement was a de facto endorsement of a system whereby
the right to health takes precedence over patent rights. It states that
the Trips agreement "does not and should not prevent members from
taking  measures to protect public health, . . including those relating
to  HIV/Aids, tuberculosis, malaria and other epidemics". The
negotiators were unable to agree on the list of "other epidemics".

  Developing countries with no drug manufacturing capacity argued, with
the support of NGOs, that they should be entitled to define what comes
under the heading of public health in their countries and thus obtain
wider access to generic medicines. Countries in the middle-income
group, notably Brazil and India, both of which produce large quantities
of generics, supported that stance because any major exemption from
patent rights would offer them market opportunities.

  The United States, which is keen to ensure that its pharmaceutical  
industry is not threatened by competition from generics, argued that
the way the text had been formulated carried the risk of the system
being  extended to include non-transmissible illnesses such as diabetes
and  asthma. According to the official version, such an extension would
undermine the protection of patents and adversely affect medical
research and development by the pharmaceutical industry. In fact
Washington was simply trying to find a way to restrict the possibility
of the system being  extended to illnesses that generate much higher
profits for drug firms.

  The British consultancy firm Bryan Garnier Co recently estimated  
that drug sales threatened by the arrival of generics on the market
would total $50bn by 2007, and that nearly $18bn of that would be
accounted for by just two US drug giants, Merck and Pfizer. Meanwhile
the European Union has veered between humanitarian considerations and
realpolitik. This greatly annoyed the French delegation at Doha, which
consistently supported poor countries being granted broad access to
medicines.

  As a token of their willingness to negotiate, and in order to avoid
taking  responsibility for any failure of the talks, the Americans
suggested that the list should be extended to include some 15 tropical
diseases found mainly in Africa. But that was turned down by the other
member countries, which felt it would be too restrictive in relation to
the broader mandate of the Doha declaration.

  The WTO's new director-general, Supachai Panitchpakdi, warned against
the "collective discredit" that the member countries might suffer
should they fail to resolve "what is more of a humanitarian issue than
a purely commercial issue". But his warning went unheeded. "The WTO
members lost their way in a legal debate that was far from the spirit
of openness towards the developing countries that had marked the Doha
development agenda meeting," said German Velasquez, the WTO's
Drug Action Programme coordinator.

"We spent a whole year on laborious discussions about legal
terminology and administrative processes, forgetting that in the
meantime millions of people were dying."  Negotiations will begin again
in 2003. The chairman of the WTO's Trips council, the Mexican Eduardo
Perez Motta, made it clear that he intended to come up with a solution
that could be put to the WTO's general council at its first meeting in
2003, scheduled for February 10.

  Meanwhile there has been mounting criticism of the WTO talks. Act Up,
a militant French association that helps Aids sufferers, has accused
the EU negotiator, trade commissioner Pascal Lamy, of using his mandate
to defend "the private interests" of the leading pharmaceutical
multinationals and of trying to ensure that the poor countries' access
to generics be restricted to illnesses that threaten the very survival
of those countries, "thus excluding 99% of drugs, which will then be
reserved for the inhabitants of wealthy countries alone".

  In a communique on December 21 the Globalisation Research, Training
and Information Unit (Urfig), a Belgium-based NGO, criticised the
attitude of  the EU countries, which believe that "the lavish profits
of the pharmaceutical industries must at all costs be protected". It
said the Geneva talks had failed because the rich countries had
preferred to risk  failure rather than take on board the legitimate
expectations of the  people of the South.