Magazine article Foreign Policy in Focus

Problems with Current U.S. Policy

Magazine article Foreign Policy in Focus

Problems with Current U.S. Policy

Article excerpt

Key Problems

* The inclusion of intellectual properly provisions in multiple-country trade agreements makes it much harder to advance public health priorities.

* Washington continues to work to limit developing countries' options to adopt intellectual property policies that could make HIV/AIDS drugs more affordable.

* The U.S. government is seeking to renege on commitments, made at the WTO Ministerial meeting in Doha, Qatar, to facilitate poor countries' access to essential medicines.

Despite the legality of compulsory licensing and despite the public health emergency enveloping much of the developing world, until mid-1999 the U.S. actively opposed developing country efforts to implement compulsory licensing or other measures to make HIV/AIDS drugs more affordable and available in low-income countries. The U.S. position suddenly changed in June 1999, following AIDS activist protests that disrupted the early presidential campaign of Al Gore. During the November-December 1999 WTO meetings in Seattle, the Clinton administration announced it would offer special treatment for health-related intellectual property disputes, taking into account health issues as well as commercial concerns. However, efforts to incorporate the new Clinton policy into the Africa Growth and Opportunity Act floundered and even threatened to impede passage of the act. So the Clinton administration issued an executive order stipulating that the U.S. would not challenge TRIPS-compliant policy measures to make AIDS medicines available anywhere in Africa.

In February 2001, with ever-heightening attention on the AIDS crisis and growing interest in what posture President Bush would adopt regarding controversial intellectual property issues, the new administration indicated that it would continue the Clinton administration's policy of permitting initiatives to make AIDS medicines more available, as long as those efforts were TRIPS-compliant. But Clinton's executive order is limited to sub-Saharan Africa and only covers AIDS medicines. This illustrates a pervasive problem in Washington's position, even after the 1999 policy shift: the treatment of compulsory licensing as an exceptional policy tool to be used only in emergency circumstances, even though the WTO TRIPS agreement considers compulsory licensing a standard part of the intellectual property regime.

Despite the executive order, both Clinton and Bush have exerted direct pressure on countries seeking to advance compulsory licensing and related policies. The mixed messages conveyed by U.S. actions, along with confusion fostered by the pharmaceutical industry over what is permissible under WTO rules, has intimidated most developing countries and left them wary of political consequences if they exercise their right to promote compulsory licensing.

In June 2001, African countries at the TRIPS governing body (known as the TRIPS Council) forced a historic discussion on intellectual property and access to health technologies. That meeting created momentum for a declaration on TRIPS and public health, which was eventually issued at the November 2001 WTO Ministerial meeting in Doha, Qatar. In the Doha Declaration, countries "affirmed that the [TRIPS] Agreement can and should be interpreted and implemented in a manner supportive of WTO members' right to protect public health and, in particular, to promote access to medicines for all. …

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