(2004; 110 pages)
IV.2.5 Resisting Bilateral and other TRIPS-plus Pressures
A regional approach to the use of TRIPS flexibilities for public health and access to medicines can provide much-needed bargaining leverage for developing countries in their dealings with their developed trading partners and in resisting pressures to forgo the use of TRIPS flexibilities and TRIPS-plus pressures. A major advantage that regional cooperation offers with respect to resisting bilateral and other TRIPS-plus pressures is that it has the potential of enhancing the political capacities and economic clout of developing countries. Regional cooperation in political matters can be a complex, long-term process that poses many challenges for government, development agencies, private entrepreneurs, and local communities. But such cooperation is necessary if individual developing countries are to withstand political pressure exerted upon them by developed countries and multinational corporations to forgo the use of flexibilities for public health and other socio-economic purposes and or to adopt TRIPS-plus standards.
Regional cooperation in this area has begun to emerge in the South. For example, during the ASEAN Workshop on Increasing Access to HIV/AIDS Drugs and Reagents held in Jakarta, Indonesia in June 2002, it was agreed that ASEAN would focus on the review of TRIPS and patent laws in ASEAN member countries with a view to using appropriate legal mechanisms available in the region such as parallel importation and compulsory licensing.104 The adoption of such a common understanding on the importance of using the flexibilities for public health purposes across the region can enable member countries to resist bilateral and other pressures. The possibility to achieve results through a regional approach will, however, depend mainly on the political will of policy makers in the South.
104 ASEAN Task Force on AIDS and ASEAN Secretariat, (2002-2005), Operational Framework for the ASEAN Work Programme on HIV/AIDS II, p. 7.
A major problem to be faced is the inadequate participation of Ministries of Health in key negotiations and trade-related decisions. Though the situation has slightly improved since the Uruguay Round, public health interests are in general not institutionally represented and are likely to be overlooked when concessions are exchanged. Consequently, in bilateral and other trade negotiations with developed countries, enhanced levels of intellectual property protection (with significant impact on public health interests) have often been traded against short-term advantages obtained in market access or other areas. Effort therefore needs to be made to ensure the effective integration of public health considerations in trade negotiations and related policy-making. Sometimes, the impact of enhanced levels of intellectual property protection is assessed by trade negotiators in terms of their effects on the local industry rather than on patients and public health budgets. A methodology to assess the public health impacts of trade agreements could be instituted more cost effectively in a regional context to help developing countries make reasoned and sound decisions on this matter.
Another important way of helping countries resist bilateral and other TRIPS-plus pressures is through efforts to establish and enhance regional non-governmental organization (NGO) networks. NGOs have played a significant role in recent debates on intellectual property and public health, as illustrated by their active participation in the discussions leading to the Doha Declaration and the implementation of its paragraphs 6 and 7. Regional civil society networks in the South working together with like-minded civil society networks in the North can provide a third force that can help developing countries discuss the issues and develop confidence to resist pressures.
Such networks are also useful in making intellectual property issues become accessible as a topic of the public interest, and of political importance to society at large. An important example of a regional civil society network that has played a critical role in intellectual property and public health as well as other trade and development issues is the Southern and Eastern African Trade Information and Negotiations Institute (SEATINI). It has been at the forefront of promoting regional coordination and in publicizing pressures by developed countries on African Governments. The network has also helped governments with technical support to resist bilateral and other pressures. The participation of civil society groups in the Free Trade Area of the Americas (FTAA) processes also illustrates how regional civil society networks can help a country to resist pressures. Other organizations, although not networks strictly speaking, such as the Third World Network (TWN), which has offices and activities in both Asia and Africa, also play a critical role.
Developing countries should use their regional institutions and frameworks in resisting pressures to forgo the use of TRIPS flexibilities for public health as well as TRIPS-plus pressures. In this connection, the establishment of regional NGO and community-based organization (CBO) networks should be facilitated through RECs and other institutions. This effort should be linked to creating regional ACTRIPS. The need for enhanced civil society participation in regional and REC processes is already recognized. For example, the EAC Treaty specifically recognizes that one of the reasons the earlier integration process in East Africa failed was the lack of participation by civil society organizations in its processes and engagement in the political process.105 On their part, a large number of civil society groups perceive integration as a process that articulates and promotes development, with an integrated approach encompassing political and social aspects.
105 See para. 4 of the EAC Treaty.