Global Policy Forum

By Russell Mokhiber and Robert Weissman *

President Bush is doing a barnstorming tour of Africa to call attention to his administration's commitment to addressing the HIV/AIDS pandemic on the continent. One problem: He's simultaneously trying to impose on African countries enhanced patent protections that would undermine their ability to gain access to affordable medicines. (Actually, there are lots of problems -- denial of debt relief, water privatization, insistence on the failed IMF "structural adjustment model," and much more -- but those are topics for another day.)

The administration has just commenced free trade agreement negotiations with the Southern African Customs Union (SACU), which consists of South Africa, Namibia, Botswana, Lesotho and Swaziland. Among the key U.S negotiating aims, announced U.S. Trade Representative Robert Zoellick, is to "establish standards that reflect a standard of [patent] protection similar to that found in U.S. law and that build on the foundations established in the WTO Agreement on Trade-Related Aspects of Intellectual Property (TRIPS Agreement)." Pushing for equivalent patent standards in Africa will severely limit countries' ability to take appropriate measures to address HIV/AIDS and other serious health problems. It also happens to run contrary to repeated U.S. promises.

An Executive Order promulgated by President Clinton but kept in effect by Bush first established the principle that the U.S. would not ask African countries to provide patent protections beyond those required by TRIPS. In 2001, all of the WTO countries, including the United States, agreed on the Doha Declaration on the TRIPS Agreement and Public Health. The Declaration affirmed that the TRIPS Agreement "can and should be interpreted and implemented in a manner supportive of WTO members' right to protect public health and, in particular, to promote access to medicines for all." The Declaration emphasized the flexibilities inherent in TRIPS and countries' right to use them to the fullest extent possible. "We reaffirm the right of WTO members to use, to the full, the provisions in the TRIPS Agreement, which provide flexibility for this purpose," the declaration states. The U.S. goal in Southern Africa is to force countries to sacrifice these flexibilities.

The Trade Act of 2002, which gave the President fast-track trade negotiating authority for the U.S.-SACU negotiations, as well as for other free trade deals, specifically establishes respect for the Doha Declaration as a principal negotiating objective of the United States in trade negotiations with other nations. To all that, the Bush administration has opted for the Emily Latella approach: Never mind. If other U.S. free trade agreements are any indication, the U.S. will push in its negotiations for a wide range of patent hyper-protections. These will be cloaked in technical language that won't mean much to most people, but will have enormous consequences for healthcare delivery in Africa.

To take just one example. TRIPS provides countries with complete freedom to determine the grounds for granting a compulsory license (authorizing price-lowering generic competition while a product is still on patent). Several U.S. free trade agreements have limited compulsory licensing to a very restricted set of cases, making it extremely difficult to undertake compulsory licensing in the private sector. That means non-governmental aid agencies, private insurers and private employers, among others, will not be able to purchase and distribute lower-priced generic versions of AIDS and other essential medications, until patents expire. That, in turn, will translate into fewer people treated.

For one of the SACU member countries, the stakes are higher still. Lesotho is a least-developed country. The Doha Declaration stipulated that least-developed countries do not need to enforce pharmaceutical patent protections whatsoever until 2016. The Southern African region suffers from the highest rates of HIV infection in the world. "National adult HIV prevalence has risen higher than thought possible, exceeding 30 percent" in much of the region, notes UNAIDS. HIV prevalence rates are 38.8 percent in Botswana, 31 percent in Lesotho, and 33.4 percent in Swaziland. South Africa has the world's largest population of people with HIV/AIDS.

Bush's AIDS initiative recognizes the imperative of treatment for people with HIV/AIDS. Treatment is expensive, but massive savings are available through use of generic medicines and reaping the benefits of generic competition. Indeed, it will not be practicable for poor countries to provide treatment, or for donors to support treatment efforts, unless lower-priced medicines -- only obtainable through generic competition -- are used.

Yet the intellectual property measures likely included in a U.S.-Southern Africa Free Trade Agreement will work to delay the entry of generics, and defer the day when consumers and procurement agencies can reap the benefits of generic competition. This threatens to impede dramatically the effort to provide treatment to people with life-threatening HIV/AIDS, as well as other diseases, with deadly consequence for millions. Offering a simple solution to these problems, Doctors Without Borders/Medecins Sans Frontieres, Oxfam, Africa Action, Health GAP, Consumer Project on Technology, Global AIDS Alliance, ACT-UP Paris and Essential Action have called on the administration to exclude intellectual property from the U.S.-SACU negotiations.

The Bush administration has a simple choice: Heed their paymasters in the brand-name pharmaceutical industry, or deliver on their commitment to provide treatment to two million people with HIV/AIDS. They can't do both.

About the Authors: Russell Mokhiber is editor of the Washington, D.C.-based Corporate Crime Reporter, http://www.corporatecrimereporter.com. Robert Weissman is editor of the Washington, D.C.-based Multinational Monitor, http://www.multinationalmonitor.org, and co-director of Essential Action, a corporate accountability group. They are co-authors of Corporate Predators: The Hunt for MegaProfits and the Attack on Democracy (Monroe, Maine: Common Courage Press; http://www.corporatepredators.org).

FAIR USE NOTICE: This page contains copyrighted material the use of which has not been specifically authorized by the copyright owner. Global Policy Forum distributes this material without profit to those who have expressed a prior interest in receiving the included information for research and educational purposes. We believe this constitutes a fair use of any such copyrighted material as provided for in 17 U.S.C § 107. If you wish to use copyrighted material from this site for purposes of your own that go beyond fair use, you must obtain permission from the copyright owner.