Asian Governments Plan To Better Use TRIPS Flexibilities For Health

International trade rules related to intellectual property rights enshrine the notion that there may be cases where exceptions to IP rights are needed by governments, such as sovereign decisions on a nation’s public health. Using those flexibilities could save millions of lives but may mean taking a tough stance in free trade negotiations with bigger trading partners, concluded a meeting of Asian stakeholders this week.

More than 90 representatives of government, academia, civil society and the United Nations gathered from 29-31 May in Bangkok, Thailand at the Regional Consultation and Planning Workshop on “Use of TRIPS Flexibilities and Access to Affordable ARVs in Asia.”

More information on the workshop, including background resources on TRIPS flexibilities, is available here.

Participants came from Cambodia, China, India, Indonesia, Malaysia, Myanmar, the Philippines, Thailand and Viet Nam, according to a press release from the Joint United Nations Programme on HIV/AIDS (UNAIDS). It did not appear that representatives of the World Trade Organization or World Intellectual Property Organization were present. Nor, apparently, were any from the rights-holding industries.

The WTO is responsible for the 1994 Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), the standard on international IP protection but which also contains agreed flexibilities that were the subject of discussion in the workshop. The flexibilities were reinforced in the 2001 Doha Declaration on TRIPS and Public Health.

UNAIDS and the UN Development Programme (UNDP) this week launched a “joint issues brief” [pdf] on the potential impact of trade agreements on public health. The brief encourages negotiating countries “to retain the benefits of TRIPS flexibilities, countries at a minimum should avoid entering into free trade agreements that contain … obligations that can impact on pharmaceutical price or availability.” And if they have already signed tough IP deals, then they should try to use remaining TRIPS flexibilities.

“Countries are facing mounting challenges to produce or procure affordable HIV treatment, including cutbacks in AIDS funding and a proliferation of increasingly restrictive intellectual property measures in free trade agreements,” UNAIDS said. “Each country delegation identified key areas for joint action, collaboration and support and developed a focused plan to speed up joint national action and ensure greatest impact.”

Despite significant gains in the number of AIDS patients receiving treatment, more than 60 per cent of those in need of treatment in the Asian region still do not have access, UNAIDS said. The event press release claimed there is evidence that using flexibilities lowers prices on essential medicines. For instance, the annual cost of a first line antiretroviral regimen for low-income countries dropped from more than US$10 000 per person in 2000 to below US$ 100 per person per year in a number of low income countries in the region in 2010, they said.

But most countries have yet to fully use the flexibilities available in the TRIPS Agreement to sustain affordable treatment, they said.

“The sustainable future of HIV treatment programmes in Asia is of serious concern,” said Steven J. Kraus, UNAIDS director for Asia and the Pacific. “Countries must use all the means at their disposal, including the TRIPS flexibilities, to increase treatment levels and to reach people most in need.”

“Countries in this region should approach the TRIPS Agreement from a pro-development perspective and should use all available flexibilities and safeguards to realize universal access to HIV treatment,” said Clifton Cortez, regional practice leader on HIV, health and development at the UNDP Asia-Pacific Regional Centre. “This meeting recognises the importance of connecting key national and regional players together to pursue common goals.”

The legal framework in India is key to the sustainability of treatment programmes in the region, the group said, as its industry produces “more than 85 per cent of all first generation antiretroviral drugs used to treat people living with HIV in low and middle income countries.” And India is currently negotiating a free trade deal with the European Union, while other Asian countries are negotiating with the EU or with the United States through the Trans-Pacific Partnership Agreement.

The Bangkok workshop was co-organised by UNAIDS, UNDP and the Asia Pacific Network of People Living with HIV/AIDS, in partnership with the International Treatment Preparedness Coalition, Médecins Sans Frontières, TREAT Asia, United Nations Children Fund (UNICEF) and the World Health Organization.