Environmental Engineering Reference
In-Depth Information
law and issue a compulsory licence to a local manufacturer. but, given that the
majority of developing countries lack the domestic capacity or technical expertise
to manufacture pharmaceuticals, the interpretation of this terminology is crucial for
ensuring access to medicine for the poor in many developing countries. as such,
the declaration includes the now well-analysed paragraph 6, which recognises the
limitations of the terms of compulsory licensing for member countries of the wto,
particularly the lDcs that cannot turn to local producers for the manufacture of
medicines (wto 2001). It calls for an expeditious solution to the problem.
as a result of uncertainty about the interpretation and reach of the declaration,
lengthy and highly acrimonious discussions ensued among the wto members
that largely put the interests of countries such as the United States against those
of developing countries. but after a year and a half of debate, lobbying, and global
public outrage about the debate, a decision was finally reached on 30 August 2003.
The decision clarifies the right of countries to take advantage of compulsory licensing
for pharmaceutical products only in the case of a national emergency in order to
address public health problems covered by paragraph 1 of the declaration (wto
2003). It also permits countries without manufacturing capabilities to turn to a third
country, such as canada (through bill c-9 on export of Medicines), for the export
of medicines. Finally, the decision reaffirms the right of governments to interpret the
trIPS agreement in a manner that supports their right to protect public health. It
highlights the need for the trIPS agreement to be interpreted in such a way as to
protect public health and not for commercial policy objectives.
but the decision does not mean the seamless application of compulsory licensing
for developing countries without manufacturing capabilities. there are a number
of administrative procedures, such as requiring both the importing and exporting
countries to issue compulsory licenses, ensuring that the wto is involved in the
overseeing of the procedures, and other stipulations contained in the accord that
could effectively limit its application. In addition, many developing countries do not
have the necessary administrative infrastructure and know-how to make use of the
compulsory licensing provision. Still, irrespective of these potential constraints,
the accord sets an important precedent of ensuring that international trade law does
not ignore the importance of public health necessities. Patients ideally should be
taking precedence over patents. It provides, however imperfectly, the potential
for countries to disengage from the exigencies of global governance—the trIPS
agreement. but despite its potential to do good, its true value is still in question. to
date, it remains an international source of shame that not one country that reformed
its patent law to export medicines to countries in need has actually done so. canada
is one of the worst offenders, as promises that were expressed through what is now
known as the canadian access to Medicines regime (caMr) were bold in 2003
have yet to be fulfilled. What is more, 'TRIPS-plus' bilateral and regional treaties
forged by the UStr continue to be a threat to the effectiveness of any social inclusion
in international trade law.
