WTO agreements and global health governance: a case study of the conflict between TRIPS and accessibility to medicines

Although WTO is mainly viewed as an organisation committed to facilitating free trade, the complex interactions of many principles in WTO’s various agreements suggest that WTO itself is also a regime for development. Since health protection is a development issue, WTO thus becomes an important player in global health governance, whose function is manifested in the four agreements under its framework. As Gong (2006) observed,

In a sense, WTO has become the central horizontal regime for international law on infectious diseases after its creation in 1995. The Agreement on Trade-Related Aspects of Intellectual Property Rights, the Agreement on the Application of Sanitary and Phytosanitary Measures, and the WTO’s powerful dispute settlement mechanism made WTO more important for infectious disease control policy than the discredited IHR. The trade regime’s

WTO and global health governance 115 ascendancy over the classical regime is apparent in the contrast between the public health attention and controversy generated by WTO agreements and the IHR's obscurity in global health discourse.

(P- 65)

In other words, WTO plays a different role from those of other international regimes in global health governance. This section examines the role of WTO agreements in global health governance through the conflict between the TRIPS Agr eement and accessibility to medicines.

The TRIPS Agreement is one of the final results achieved in the Uruguay Round of the GATT. It was signed on April 15, 1994, and became effective on January 1, 1995. It is to date the most comprehensive multilateral agreement on intellectual property. It is also a global multilateral agreement that has had the greatest influence on the intellectual property and legal systems of countries and regions around the world. It also forms one of the three pillars of WTO together with the Agreement on Trade in Goods and the Agreement on Trade in Services. The purpose of the TRIPS Agreement is to promote more adequate and effective protection of intellectual property rights in international trade so that holders of intellectual property rights can benefit from then technological inventions. In so doing, holders of intellectual property rights can be motivated to continue working on more inventions and creations, thereby making the material and spiritual results of technology and arts as widely available to the public as possible. The TRIPS Agr eement also aims to reduce the distortion and obstruction of international trade by intellectual properly protection and ensure that the implementation and procedures of the TRIPS Agreement do not hinder legal trade. However, since 2001, given the grave threats to people’s health by HIV/AIDS, tuberculosis and malaria, public health problems in developing countries have received increasing attention from the international community. In 2002 alone, 15 million people worldwide had reportedly died of infectious diseases, and tens of millions were battling death after contracting HIV/AIDS. In Africa and Latin America, deadly infectious diseases such as malaria, tuberculosis and HIV/AIDS were fast spreading, putting people’s health and the economy in serious jeopardy. Reasons for public health crises in these areas are manifold, but the critical one is the lack of access to effective and affordable medicines. Oxfam, an international charity, published a 2001 report titled “Patent Injustice: How World Trade Rules Threaten the Health of Poor People”, which examined the prohibitive drug prices inflated by WTO’s patent system and its catastrophic impact on poor countries (Oxfam, 2001). The report took efavirenz and nelfinavir, two Western patented medicines for AIDS, under scrutiny. According to statistics in October 2001, under patent protection Stonathan could sell for as much as US$4,730, as opposed to USS485 of similar generic medicines, while nelfinavir could fetch US$3,508 under patent protection, compared to only USS201 of generic medicines. Developing countries estimated that they could save 80-90% of their expenses if they were allowed to produce generic medicines (Cheng, 2001). But the TRIPS Agreement has prevented them from producing these patent-protected medicines at the same time depriving them of the ability to afford expensive patent medicines. It thus contributes to serious public health crises in developing countries.

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