Developing countries at WTO support UN panel’s report

At a meeting of the WTO’s TRIPS Council, several developing countries spoke in support of the recommendations of the UN high-level panel on access to medicines, while some developed countries were not so favourable.  Below is a report by Kanaga Raja, which was published in the SUNS on 14 November 2016.

By Kanaga Raja

A meeting of the WTO TRIPS Council on 8-9 November discussed a recent report of the UN Secretary-General’s high-level panel on access to medicines with many developing countries expressing strong support for the panel’s recommendations which advocates amongst others the full use of TRIPS flexibilities. The item on the panel report was placed on the agenda by Brazil, China, India and South Africa.

During the TRIPS Council meeting, many developing countries including Egypt, Indonesia, Bangladesh and Bolivia, welcomed the discussions on the report in the TRIPS Council and voiced their support for the high-level panel’s recommendations.

The US, the EU, Japan and Switzerland, supported by Korea differed from developing countries, while some other developed countries said they needed more time to study the panel’s recommendations.

India underlined that the TRIPS Agreement tried to strike an appropriate balance between the interests of rights holders and users. The search for a balance between the need to protect IPRs to provide incentives for R&D on the one hand and, on the other hand, to address concerns about the potential impact of such protection on the health sector – in particular its effect on prices – has been an important consideration in the WTO’s work, said India.

According to India, the TRIPS Agreement also recognizes that the principles of IP protection are based on underlying public policy objectives, and that a number of safeguards or flexibilities have become an integral part of the TRIPS framework. These flexibilities can be used to pursue public health objectives.

However, many developing countries are constrained by limited technical capacity to make full utilization of the TRIPS flexibilities. Moreover, even where some developing countries have used the flexibilities available to them under the TRIPS Agreement to address public interest objectives through measures which are fully consistent with the TRIPS Agreement, these attempts have been challenged legally as well as politically.

“A slew of regional trade agreements containing TRIPS-plus standards of IP protection and enforcement have the potential to significantly undermine the effective and full use of the TRIPS flexibilities. Investor-State disputes under regional or bilateral investment protection agreements are also emerging as a major challenge to the use of TRIPS flexibilities in the public interest,” said India.

Against this background, said India, the recommendations of the HLP, especially on (i) TRIPS flexibilities and TRIPS-plus provisions and (ii) Publicly-funded research are very important with regard to access to health technologies.  India read out the relevant recommendations.

India encouraged Members to share their views on the recommendations of the HLP at this session of the TRIPS Council. At the subsequent sessions of the TRIPS Council, it encouraged Members to share their experiences in using the TRIPS flexibilities to address public policy priorities, in particular, related to public health.

(See separate article on India’s full statement.)

In its statement, Brazil noted that among the high-level panel report’s recommendations, some are directly related to the TRIPS Agreement. One of these calls for WTO members to commit, at the highest political levels, to respect the letter and the spirit of the Doha Declaration on TRIPS and Public Health, refraining from any action that will limit their implementation and use in order to promote access to health technologies.  Brazil read out some of the report’s recommendations.

(See separate article on Brazil’s statement.)

According to Brazil, engaging in the discussion of recommendations by the High Level Panel might allow members to consider different aspects of the relationship between access to medicines and the Patent System.

Brazil said it is convinced that a balanced and effective IP system would go a long way toward facilitating access to essential medicines without in any way infringing on market principles.

“We all know access to medicines is a challenge for most countries, whether least developed, developing or developed. We present these views in a spirit of dialogue, convinced that they are in the interest of everyone, without exception, and encourage the whole Membership to work constructively towards achieving the goal of universal access to medicines,” said Brazil.

According to trade officials, South Africa said that the panel report calls upon WTO members to commit to and respect the Doha Declaration on TRIPS and Public Health, and that countries should make full use of the TRIPS flexibilities.

China said that it is pleased to be a co-sponsor of the agenda item, adding that the high-level panel gave various recommendations and provides valuable information to members. Public health is one of the most important issues on the agenda, it said, noting that leaders at the Hangzhou G20 summit also made a commitment in this regard.

The United States said that although it is strongly committed to creating effective and affordable life-saving medicines around the world, it was disappointed by the report which it claimed “distracts from rather than benefits” the objective of achieving universal health. It maintained that intellectual property protections needed to be in place to support new research and innovation. “There can be no access to drugs that have not been developed; support in innovation is essential,” said the US.

The European Union maintained that the work conducted by the Panel started from an assumption that there was a “policy incoherence between the justifiable rights of inventors, international human rights law, trade rules and public health”.    The European Commission does not share this assumption.

The Commission shares the Report’s acknowledgement that there are many reasons “why people do not get the healthcare they need, ranging from: under-resourced health systems, a lack of sufficiently qualified and skilled healthcare workers, inequalities between and within countries, exclusion, stigma, discrimination and exclusive marketing rights…However, due to its limited mandate, the High-Level Panel has focused its proposals exclusively on addressing an alleged conflict between a research and development model that (partially) relies on intellectual property rights and the possibility of providing affordable medicines.”

“The challenge is to strike the right balance between the need to promote and finance the research of new and better medicines for all, ensuring that medicines are accessible and affordable to those in need, while guaranteeing the sustainability of health systems. We believe that these goals are not contradictory and must be pursued jointly,” it said.

The EU claimed that the current innovation model, including the role of trade related to IP, has delivered consistent progress in global public health, leading to key new and improved treatments as well as much extended life expectancy, both in developed and least developed countries.

It also said that the report under-plays the fact that the development of new drugs requires significant investment and long-term research, coupled with clinical trials and regulatory approval procedures. The EU said that the exclusive right conferred by a patent is an important incentive for innovator pharmaceutical companies to make the necessary investments into that research and development.

According to trade officials, Switzerland, Japan and Korea expressed similar concerns on the “narrow scope” of the report. They argued that the use of compulsory licences must not discourage innovation.

A few countries, including Canada, Chile, Australia and Norway, said that they needed more time to consider the wide array of recommendations highlighted in the report.

The Holy See, an observer, echoed the concerns on access to medicines, highlighting that health is a fundamental human right, and “millions are left behind”.  Ensuring success of the sustainable development goals included an end to the epidemics, and it requires global solidarity and initiatives, it said.

The World Health Organisation (WHO), the United Nations Conference on Trade and Development (UNCTAD), and the Joint UN Programme on HIV/AIDS (UNAIDS) also highlighted the work that they have undertaken in this area.

The UNCTAD Secretariat said that the High Level Panel Report recommends the full use of flexibilities inherent in the WTO TRIPS Agreement. UNCTAD said its work over the past ten years shows that these flexibilities, such as the recourse to strict patenting requirements, certain exceptions to patent rights and the availability of compulsory licenses play an important role in promoting generic competition and thus decreasing drug prices.

“According to our research many of those countries that now enjoy a fully developed pharmaceutical sector in the past relied on many of those flexibilities that the High Level Panel Report recommends in order to strike a balance between inventors’ rights and the realization of certain development objectives.”

According to UNCTAD, the High Level Panel’s recommendations underline the United Nations’ commitment to the realization of Sustainable Development Goal 3, which in its targets expressly refers to the goal of providing “access to affordable essential medicines and vaccines, in accordance with the Doha Declaration on the TRIPS Agreement and Public Health.”

On the new incentives for research and development of health technologies, the High Level Panel Report recommends increased investment by governments in health technology innovation to address unmet needs, such as neglected tropical diseases and antimicrobial resistance.  The Report refers to various ongoing initiatives in this regard and underlines the need to develop new and innovative sources of financing public R&D.

The Report is not limited to public funding, but underlines the untapped opportunities for increasing private sector funding. The recommendations provide important support to efforts that seek to identify innovative opportunities for both public and private sector funding of health R&D.

UNCTAD also welcomed the High Level Panel Report’s recommendation to increase inter-agency coordination.

In its statement, the WHO said that the report’s conclusions are sobering. “Millions of people continue to suffer and die from treatable conditions,” the report observes, “because of a lack of access to health technologies.”

Pharmaceutical research still focuses disproportionately on the treatment of diseases that are common in the developed world, neglecting those that primarily afflict the world’s poor.
“The report thus echoes conclusions of previous reports done under the auspices of the WHO, which draw attention to disparities in the R&D system and lack of access to essential medicines,” said the WHO.

The WHO then went on to go through the different recommendations in the high level panel report, in particular those that are directly addressed to WHO, and highlighted its relevant activities and future plans in this area.

Members agreed to revert to the matter at the next meeting of the TRIPS Council in February 2017.

Kanaga Raja is the Editor of the South North Development Monitor (SUNS).