WHO Board Adopts Resolution On Medicines Access After TRIPS Flexibilities Debate

The sometimes tense issue of intellectual property rights flexibilities built into international trade rules on IP briefly threatened to trip up a proposal on access to medicines today at the World Health Organization. But members managed to steer the debate to consensus on a text that will now head to the full membership for approval in May.

The WHO Executive Board is meeting from 20-25 January. The meeting documents are here.

At issue was a proposal, EB134/CONF./14 [pdf], led by China, with several cosponsors such as Libya, Korea and South Africa, that urges member states to take a variety of steps to ensure access to essential medicines. Other nations joined as cosponsors, such as Brazil, Bangladesh, and Australia.

A slightly modified “non-paper” version [pdf] was circulated this morning reflecting an informal drafting session last night – and was adopted with one final modification after debate.

The new draft showed changes in wording recalling previously agreed texts on flexibilities to the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). The approved draft resolution will head to the annual World Health Assembly in May.

The reference to flexibilities is embodied in a pre-existing WHO document, the Global Strategy and Plan of Action on Public Health Innovation and Intellectual Property (GSPOA), that itself was the subject of intense negotiation a couple of years ago.

The revised resolution this morning proposed to change references to the GSPOA from “in accordance with” it, to “as stated in” it. In the end, a compromise proposed by Brazil was agreed, saying, “in line with.” Some delegations said they could not see the difference but agreed with any variation.

Rallying Around South Africa

The United States led off the discussion by objecting to the proposed change to “as stated” as not sufficiently capturing the full context of the GSPOA, which contains language balancing the notion of flexibilities.

The US proposed to add language on the importance of protecting IP rights for the development of new medicines.

This led to a strong reaction from several developing countries, some of whom referenced the emotional speech of South Africa from earlier in the week (IPW, WHO, 24 January 2014) that in some ways defined this Executive Board meeting.

Egypt said they were “not happy” with the proposed language on IP, saying that while they recognise the importance of IP, “we are not here discussing the TRIPS agreement,” and recognise the flexibilities in TRIPS.

Brazil said it was “extremely disappointed” that each time there is a reference to TRIPS flexibilities this type of situation arises. The flexibilities are approved, so it should not be that they are questioned each time, the delegate said. “We heard from South Africa about their difficulties,” the Brazilian said, adding that they would have hoped it would resonate “in the hearts and minds” of member states.

South Africa thanked Brazil and said the compromise and this document would help it with what it is “going through” in South Africa.

Australia (a developed country) said it preferred the original language but accepted the Brazilian proposal, after stating that Australia too, is “under some attack in terms of TRIPS flexibilities.” This is presumably a reference to its efforts to defend a public health policy requiring that tobacco be sold in plain packaging.

Switzerland said it supported the US proposal, but later accepted the compromise language after the US did.

Maldives urged passage of the access to medicines resolution as lack of access to affordable medicines is a critical problem for the country. The delegate said her “heart goes out” to the people suffering in South Africa and other states, and that it would be “a disaster” if this resolution failed over a few words.

Cameroon also urged passage, saying that today it is South Africa or Australia, tomorrow it will be “our countries.”

Argentina said it is “difficult to express how uncomfortable and concerned” they are with this situation, in which whenever governments talk about TRIPS flexibilities there are questions. The delegate referenced the “very emotional” statement of South Africa.

Panama said that low-income countries continue to suffer difficulties due the lack of accessibility and availability of medicines.

The United States was then asked by the chair to show flexibility in its position, which it did, agreeing to support the compromise of “in line with” with the understanding that it is the full context of the GSPOA.

China remarked that it fully understood why there is a “heated discussion” on this resolution, and thanked all sides for agreeing.

Officials from China refused to discuss their proposal with the press.