IP Watch; December 6, 2015. The World Trade Organization (WTO)’s 20th anniversary celebrations are about to reach a climax with the 15–18 December Nairobi Ministerial Conference — the first to be held in Africa — following a celebratory Public Forum in Geneva in October.
Just over a week before Nairobi, another anniversary is slipping by almost unnoticed. Today, December 6, is the 10th anniversary of a decision that the Director-General at the time, Pascal Lamy, hailed as confirmation “once again that members are determined to ensure the WTO’s trading system contributes to humanitarian and development goals.”
On that day in 2005, on the eve of another ministerial conference (in Hong Kong), WTO members agreed to amend the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) so that generic versions of patented pharmaceuticals could be made under compulsory licence, for export to countries that are unable to produce the medicines themselves.
But deciding to amend the agreement was not enough. The amendment cannot take effect until two thirds of the membership have ratified (officially, “accepted”) it. A decade later, we are still waiting. Only 87 of the 162 members have done so, well short of the 108 needed.
Only 10 of these are African, leaving large swathes of the continent still to accept it. And yet, back in 2005 the African Group were particularly vocal in pressing for the decision, arguing that it was needed in order to make medicines accessible, so that diseases such as HIV/AIDS, malaria and tuberculosis could be treated.
Repeated calls by senior WTO officials for countries to accept the amendment have had little effect. The latest was by the current Director-General, Roberto Azevêdo, on October 28 when he added: “It’s important to note that this amendment does not require members to take on any new obligations — precisely because it concerns a new flexibility, not a new obligation. It simply means that they affirm the right of all members to use this legal protection if and when they wish to.”
In other words, when enough countries accept the amendment they will be confirming the flexibility for other countries that want to use it — particularly potential exporters of generics made under compulsory licence — even if they themselves will not use it. But that’s not the whole story.
Precedent for Trade Facilitation?
Normally, this would be a terrible precedent for another decision to amend the WTO agreements: the highly-acclaimed trade facilitation deal, agreed two years ago in Bali at the last WTO ministerial conference, and whose legal text was finalized in November 2014.
Hopes that the trade facilitation text would take effect by the time of the Nairobi meeting this month are fading fast. So far, only 53 members have accepted this amendment to the WTO agreements, less than half the 108 needed, although the number is rising more quickly than in the intellectual property case.
Delaying the Trade Facilitation Agreement has serious economic implications. Without it countries are under no obligation to streamline their customs and other border procedures, which would continue to hurt landlocked nations as well as the rest of the world.
The assistance promised for poorer countries would not be forthcoming either. An often-overlooked result is that developing countries that have not accepted the Trade Facilitation Agreement are depriving fellow-developing countries of that assistance.
Fortunately the consequences are far less serious with the amendment on pharmaceutical patents. In fact, they are negligible: nothing more than the cosmetic issue of establishing the rules within the TRIPS Agreement rather than as an exception to it.
This is because for all intents and purposes the 2005 TRIPS amendment is identical to the “waiver” agreed two years previously, which remains in force until the amendment takes effect, and may explain the lack of interest in accepting the amendment. (That is not the case with the Trade Facilitation Agreement.)
It does beg the question of why the African Group were pressing so hard for the TRIPS amendment in the first place, unless they were simply seeking symbolic confirmation of richer countries’ commitment to poorer countries’ access to patented medicines.
Meanwhile, in the past decade, the debate has moved on. Patents are now seen as only one part of a complex web of issues affecting access to medical treatment, and the range of policies needed.
Nevertheless, the plight of both amendments may be a reflection of the lack of interest in the WTO. Governments seem to have little enthusiasm to follow up on the hard-fought decisions they agreed when the spotlight was on them.
Much has been made of the WTO’s current difficulty in performing its “negotiating function”. But no matter how tough, agreement in a negotiation is not the end. It’s the start of a lot more work. The TRIPS and trade facilitation amendments suggest that once an issue moves out of the limelight, WTO member governments are now prone to drop the ball.
Since retiring from the WTO Secretariat’s Information Division earlier this year, Peter Ungphakorn has returned to journalism
Image Credits: WTO