PHM-Exch> PUTTING BUSINESS BEFORE HEALTH AT WHO?

[Claudio Schuftan]

>From Equinetn and th South Centrte



PUTTING BUSINESS BEFORE HEALTH AT WHO?
German Velasquez, South Centre

 On 5 February 2013, in a ceremony at the WTO, the three Director Generals
of WTO, WIPO and the WHO launched the trilateral publication titled:
“Promoting Access to Medical Technologies and Innovation”, the fact that a
publication regarding public health was launched at the headquarters of the
WTO is a reflection of the increasing importance of public health issues in
the context of WTO and WIPO, an issue on which the WHO has been the leader.

 The study shows progress on the part of the WTO and WIPO since they talk
about these issues without “taboo”, however it does not give a complete
picture of the extent to which WHO has lead this issue over the past
decade. 17 resolutions by the World Health Assembly adopted between 1996
and 2012 are cited in the report in a table on page 44 concerning
intellectual property and health. These resolutions are of highly
prescriptive character, for the secretariat and for countries on how to
protect public health from the possible negative impact of new
international trade rules. Despite numerous resolutions and publications in
the last 15 years by the WHO on this issue, many of which are not mentioned
in the report, the disclaimer of the document says that “(…) the published
material is being distributed without warranty of any kind, either
expressed or implied. The responsibility for the interpretation and use of
the material lies with the reader. In no event shall the WHO, WIPO and the
WTO be liable for any consequences whatsoever arising from its use.”

This could give the wrong impression to the reader of this report that the
WHO has no opinion on whether a compulsory license may, in special
circumstances, facilitate access to drugs, or if an international
exhaustion regime, that allows parallel imports from any country can reduce
the cost of drugs and therefore contribute to access. The 17 WHA
resolutions give a mandate to the WHO to engage, promote and defend
mechanisms and policies in favour of access. Thus, it is important to
ensure that the Trilateral Cooperation with WTO and WIPO do not lead the
WHO to share a “neutral” vision, totally disengaged from its mandate of
protection of health. This would be contrary to the exemplary leadership
from the WHO on “The Revised Drug Strategy”, WHA 52.19 in 1999 or the “WHO
Policy Perspectives on Medicines” published in 2001 that says: “National
patent and related legislation should:

• Promote standards of patentability that take health into account. (…)
• Incorporate exceptions, trademark provisions, data exclusivity and other
measures to support generic competition.
• Permit compulsory licensing, parallel importation and other measures to
promote availability and ensure fair competition.
• Permit requests for extension of transitional period for TRIPS
implementation, if needed and if eligible.
• Carefully consider national public health interests before instituting
TRIPS-plus provisions

 As expressed by the three NGOs that addressed the Executive Board in
January this year, on the issue of IP and public health, the Trilateral
Report is a weak and unambitious document in which the WHO does not fully
reflect the work it has done on these issues in accordance with its mandate.

 The question that we as member states of the WHO, international
organisations with a clear vision regarding the priority of health such as
UNDP or UNAIDS, or UNICEF, non-profit NGO’s working on public health, the
academia and all the sectors concerned with the promotion of health and
access to medicines should ask is what is the relevance and status of this
report in the face of the 17 resolutions by the WHA giving a clear mandate
that is not reflected in this document.

 It would seem that we have overcome the debate that began in the early
2000’s about which one was first, the right to health or international
trade rules, but in this trilateral publication, the mandate of the WHO to
promote public health seems to have been subordinated to accommodate IP and
trade interests that WIPO and WTO promote.

 Therefore, the Trilateral Report is in the nature of a “Wikipedic” report
that describes what others have said on the issue, without any of the three
organisations saying what they think. The 251 page document contains no
recommendations, not even a conclusion, or any guidance. In comparison, the
2006 WHO report on Public Health, Innovation and Intellectual Property
rights (CIPIH report), led by the former president of Switzerland, Ruth
Dreifuss, contained 60 recommendations.

 A Japanese saying goes: “what a man does not say is the salt of a
conversation”. We can say that this report…is an insipid report…

Please send feedback or queries on the issues raised in this briefing to
the EQUINET secretariat: admin at equinetafrica.org. This oped was first
featured in a 2013 mailing of the South Centre, Geneva
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