A matter of life and death
February 26, 2003
In the Sunday Stabroek of 9th February, 2003, there was a letter from one of the most powerful decision-makers in the European Union, Pascal Lamy, European Commissioner for Trade.
Lamy is a member of the European Commission, the body to which European member-governments have entrusted most of the integration decision-making within the EU. The matter on which Lamy wrote, to use his own words, is "simply a matter of life and death" for most of the people in the developing world, which in fact means most of the people in the world. The question he dealt with is how to ensure that many developing countries have access to the key medicines required to cope with the health-epidemics which are the scourge of their countries.
The question of concern to Lamy is the deadlock in the WTO negotiations in Geneva on how to enable poor countries like Guyana with limited or no manufacturing capacity to import, despite patent-restrictions, generic drugs (i.e., exact copies of patented medicine) to deal with epidemic diseases such as AIDS. Generic drugs are invariably substantially cheaper than the patented originals.
At the heart of the problem is the fact that the producers of the patented drugs are the powerful pharmaceutical corporations mainly located in the USA and the European Union while the generic copies are mostly made in Brazil, India and Thailand.
To further understand current difficulties, one has to go back to the WTO Ministerial Conference in Dubai, the capital city of the Gulf State, Qatar, in November 2001. The outcome of that conference was at one stage hailed as a breakthrough for developing countries, especially in the case of the "Declaration on Trade-Related Aspects of Intellectual Property (Trips Agreement) and Public Health." The Declaration provided for the flexible interpretation of patent-rights on drugs. Such interpretation recognised that the right to health of the world's peoples was superior to patent- rights. Thus the Doha Declaration included the following provisions:
a) each Member has the right to grant compulsory licences (for manufacture) and the freedom to determine the grounds upon which such licences are granted;
b) each member has the right to determine what constitutes a national emergency or other circumstances of extreme urgency, it being understood that public health crises including those relating to HIV/AIDS, tuberculosis, malaria and other epidemics, can represent a natural emergency or other circumstances of extreme urgency.
These provisions were interpreted to mean that any state could licence the manufacture of drugs deemed necessary to cope with an epidemic which is seen as a national emergency, even if the patent-holder in another state refuses to give permission to manufacture the drug. It is noteworthy that the Bush Administration itself invoked this provision at the time of the Anthrax scare, in order to manufacture the required drug Cipro when the German pharmaceutical corporation holding the patent refused to give permission.
The governments of those states in which the major pharmaceutical corporations are located, namely the EU member-states and the USA, have always interpreted the above-mentioned provision to be limited to the manufacture by the state invoking the provision of the drug for its own people. However, the Declaration had recognised that WTO Members with insufficient or no manufacturing capacities could face difficulties in making effective use of compulsory licensing. Accordingly, the Dubai Conference had instructed the Council for TRIPS to find an expeditious solution to this problem before the end of 2002.
The negotiations now deadlocked within the Council of Trips are precisely on this question of how countries like Guyana with only modest manufacturing facilities can access drugs to cope with other epidemic diseases. In the case of AIDS Guyana is at present only manufacturing some of the urgently required drugs. The right to import cheap generic drugs from available sources e.g. from Brazil and India, would clearly be of vital importance.
The developing countries have interpreted the Declaration as enabling them to licence the import of generic drugs at the cheapest prices wherever they are available. However, major corporations argue that the widespread importation of generic drugs would lead to severe reduction in their profits. Consequently, they argue that they would be unable to maintain their research programmes leading to the production of new drugs. But these corporations have never, as far as is known, produced supporting evidence for their claims. Some authorities have pointed out that most of the fundamental research is in fact funded by governments through universities and research institutes.
One of the main bones of contention in the deadlocked Geneva negotiations turns on the interpretation of the phrase "and other epidemics". The developing countries argue that it is their prerogative to determine what constitutes a national emergency. Hence any disease if considered to be epidemic could trigger the right to invoke compulsory licencing for home manufacture or imports. Faced with this possibility, the developed countries sought to reach an agreement on a restricted list of some fifteen tropical diseases mainly found in Africa. Agreement was reportedly reached on some kind of extended list proposal when as Commissioner Lamy, who is leading the EU delegation, pointed out on December 20 last year, only the US delegation was unable to join in the consensus.
It is reported that US Vice-President Dick Cheney, at the urging of the US corporations which are heavy subscribers to the Republican party-funding, intervened to ensure that there was no agreement. The UK paper, The Guardian, in its weekly (2-8 January) editorialised on the position as follows:
"... the intervention by Vice-President Dick Cheney last week to torpedo a deal to get cheap drugs into poor countries whose populace have been consumed by epidemics was a cold-hearted piece of realpolitik. ... in doing so, the US has emptied the current round of trade talks of meaningful and substantial proof that globalisation could help the poor." (Realpolitik has been defined as putting the interest of one's nation above all other considerations).
Lamy's proposal that there be an arrangement under which the World Health Organisation (WHO) be asked to provide guidance to states was aimed at breaking the deadlock. The WHO would be expected to provide advice on which epidemic diseases would constitute national emergencies, thus triggering the provisions for compulsory licensing. While Lamy has not mentioned it in his letter, the proposal for a role for the WHO has already been advanced during the Geneva negotiations where the African Group of States supported by Brazil and India have rejected it on the basis that they could not accept a narrowing of the scope of the Doha Declaration on Trips and Health. In rejecting the proposal for a role for the WHO, the African Group of States together with Brazil and India were relying on the clear language of the Declaration already quoted namely "Each member (state) has the right to determine what constitutes a national emergency or the circumstances of extreme urgency ..." Nevertheless, the seemingly out-of-hand rejection of the WHO consulting proposal may have been unwise. It might surely have been possible with diplomatic skill to devise a mechanism which would respect the sovereign right of the State to determine when there is an emergency while allowing a timely role for the WHO to assess the level of impact of a particular disease in the State. Thus such an arrangement might exclude from consideration as an emergency, non-transmissible diseases such as diabetes and asthma which some developing countries wished to place on the list and which had so alarmed the pharmaceutical corporations, especially in the USA.
While hostility has been focused mainly on US action, ambiguities have also been noted in the position of the EU delegation led by Lamy. The famous French newspaper, Le Monde, stated that the EU has veered between humanitarian considerations and realpolitik. A leading French NGO calling itself Act Up (quoted by Le Monde) has moreover accused Lamy of using his mandate to defend "the private interests of the leading pharmaceutical multinationals and of trying to ensure that poor countries' access to generics (i.e. copies of patented drugs) be restricted to illnesses that threaten their very survival ..."
The current deadlock in Geneva probably means that the question of access to essential drugs is back at the stage before the WTO ministerial meeting in Doha in November 2001. The situation is reflective of the deep misgivings and distrust which increasingly divide the northern industralised countries from the developing countries. It marks the emerging collapse in relations between the two sides not only in Geneva, but also in other international agencies and elsewhere.
That is the background against which Pascal Lamy, EU commissioner for Trade, has taken the unusual step to appeal through the media directly to peoples in developing countries and over the heads of their governments.
Doha, the capital of Qatar, was initially unknown until the holding of the WTO meeting. It became then a watchword for a new spirit of cooperation and commitment to development in global negotiations. In the future, it is most likely to be remembered as the capital of a territory which provided a bridge-head for invading forces for the war on Iraq.