SAPs and Africa

• “In Africa, SAPs have resulted in significant macro-economic policy changes and public sector restructuring and reduced social provisioning, with negative effects on education, health and social services for the poor. A recent review of available studies on structural adjustment and health for a WHO commission states: 'The majority of studies in Africa, whether theoretical or empirical, are negative towards structural adjustment and its effects on health outcomes”

Sanders, D. in “Globalisation, health and health services in Sub-Saharan Africa” available from http://www.choike.org/

SAPs and Health

“…the median per capita health budget for sub-Saharan Africa is US$6 and that the mean for the lowest income African countries is US$3. According to the WHO, US$60 is required per person per annum to deliver a basic level of health care.” (Bond and Dor 2003)

What are the values?

The UDHR (Universal Declaration of Human Rights) (Article 25) cites the right to "… a standard of living adequate for the health and wellbeing of himself and of his family, including food, clothing, housing and medical care and necessary social services…" and … the International Covenant on Economic, Social and Cultural Rights (ICESCR) (UNICESCR, 1966) … in Article 12 ‘the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.’ (London 2004)

The challenges

“… the challenges posed by neoliberal globalisation to our values of equity and social justice, to government ability and flexibility to implement the public policies that we choose and to the public sector health and essential services and that are critical for our health” (EQUINET 2004);

Health and the WTO

• WTO agreements limit sovereignty of state

• WB/IM F conditionalities also limit sovereign rights of state

• NEED EXPLICIT RECOGNITION THAT INTERNATIONAL AGREEMENTS SHALL NOT LIMIT RIGHTS OF STATES TO PROMOTE AND PROTECT HEALTH

International Trade Justice?

• For discussion If a country wins at the DSB, it can retaliate by imposing sanctions on the offending country.

If a big or developed country imposes sanctions on a small or developing country, this would have significant impact if their trade constituted a substantial share of total trade of that country.

• Scenario One:– What would happen if a small or developing country won and imposed sanctions

on a large or developed country? – Could it hurt the big country?

• Scenario Two:– What would happen if there was a dispute between two large or developed

countries?

Nutrition

• Nutrition is the key determinant of health status

Up to two-thirds of all Africans in this region live in rural areas, trying to make a living from often marginal land with little opportunity to earn wages. Three-quarters of those living in rural areas also live below the poverty line. Agriculture contributes 35% to the southern African regional GDP and 13% of total export earnings (SADC, 2004). In addition, about 70% of the population of the region depends on agriculture for food, income and employment. The impact of immediate factors such as drought, flooding and unseasonal weather have combined with underlying factors such as continual poverty, effects of structural adjustment programmes and HIV and AIDS to undermine food security and the state’s capacity to respond to household food insecurity. In 2003 this resulted in more than 16 million people in southern Africa suffering from food shortages. More than half the Zimbabwean population, over a third of the populations of Malawi and Lesotho, a quarter of all Zambians and one in 20 Mozambicans needed emergency assistance up until the harvests in 2003. (Chopra)

Nutrition and Trade

• UK prime minister Tony Blair’s Commission for Africa notes:

• We live in a world where rich nations spend as much as the entire income of all the people in Africa subsidising the unnecessary production of unwanted food – to the tune of almost US$1 billion a day, while in Africa hunger is a key factor in more deaths than all the continent’s infectious diseases put together. We live in a world where every cow in Europe has received almost US$2 a day in subsidies – double, grotesquely, the average income in Africa.

Trade Related Intellectual Property Rights

(TRIPs)Riaz Tayob

obo Rangarirai Machemedze

SEATINI Zimbabwe

EJN Conference29 November 2005

South Africa

Key Messages – TRIPs• Intellectual Property Rights protection has become a more

recently a compulsory policy through WTO. • Protection of Intellectual Property Rights is argued to

enhance investment in innovation. It can however create scarcity of technologies,

• TRIPS is an agreement now under the WTO and provides for a 20 year intellectual property protection on patents

• TRIPs provides flexibilities that countries can use to reverse the scarcity of technology rich goods like patented pharmaceutical drugs.

IPRs

• What is an intellectual property right?– An intellectual property is a creation of the mind– inventions that are:

• New• Involve an inventive step – that is non obvious• are capable of industrial application - useful

– TRIPs agreement has minimum standards of protection

• 20 years exclusivity on production, sale and offer for sale

What is excluded?

• States may also exclude the following from being patented:– diagnostic, therapeutic and surgical methods

for the treatment of humans or animals;– plants and animals and essentially biological

processes for the production of plants and animals

TRIPs

What purpose does it serve?– protection through exclusive rights, in order to give

adequate returns to the innovators– exchange disclosure for exclusivity– monopoly right– Argument against IPR protection:

• innovation will occur whether there is protection or not; that • innovation depends largely on a body of publicly funded

knowledge• R&D spend is lower than marketing spend

Discussion point

Is a discovery an invention…

Is the “discovery” or rediscovery of a plant

used by indigenous people capable of being

patented?

Is it new or is it novel?

Who owns this knowledge?

Can a community own a patent?

Dicoveries vs. Inventions

• Can be protected by independent system– Called sui generis system– OAU has model law

• TRIPs rights are individualistic• Indigenous rights are communal• Need to pass laws to:

– prevent biopiracy– promote informed consent– Benefit sharing

Impact of TRIPs

• Scarcity of Drugs – access issue

• Higher prices

• Production of new medicines limited to patent holder

• Commodification of drugs

Nasty Figures

• Need to dispel some myths in the Pharmaceutical industry

• Disease burden: 18% Malaria, TB & Pneumonia yet 0.2% R&D

• R&D prefers Sexual Impotence, Balding & Obesity

• More spent on MARKETTING than R&D

Price Differentiation

27.00Guatamala

10.50Kenya

8.25South Africa

0.64India

0.29Thailand

Price of Fluconazole in 2001 in US$

More Anomalies

• 2001 saw 79% drop in the price of certain ARV’s in Brazil once generic equivalents produced

• Inter company prices between subsidiaries have mark ups of sometimes 3000% to 7000%

• The Pharmaceutical business is big business

Discussion Point

• Developed countries did not universally protect patents on chemicals and pharmaceutical drugs. – Many only adopted these protections late in the 20th century.

• Spain did in 1992• Switzerland in 1978.

– Used it as a developmental policy aimed at:• providing access to drugs, and• development of a domestic pharmaceutical sector. (Chang 2001)

• What positive and negative consequences do patents imply for access to anteretrovirals and new drugs for TB and Malaria in east and southern Africa?

• Do countries in ESA patent their own traditional medicines? Why?

Flexibilities under TRIPs

• Flexibilities to exclusive monopoly rights exist in Flexibilities to exclusive monopoly rights exist in TRIPs agreementTRIPs agreement– Compulsory LicensingCompulsory Licensing– Government UseGovernment Use

• Practically:Practically:– Importation (buying from another country)Importation (buying from another country)– Local production (manufacturing the product locally)Local production (manufacturing the product locally)– Export (a country with production capacity can export Export (a country with production capacity can export

it to those who need it).it to those who need it).

Protecting Policy Flexibilities

• Policy Flexibilities under attack @ – WTO– Regional Agreements– Bilaterally

• Attack seeks to– Increase patent protection– Remove flexibilities

Government Use

• If a product is for government use then there is no need to respect patent laws.

• Condition: “public non-commercial use.”

Compulsory License

• A compulsory license is a non-voluntary license - given without the consent of the patent holder

• Is given by an official authority for the use of a patented invention

• The reasons include:– national emergencies– anticompetitive practices by the patent holder – public health reasons– to protect national security interests– local production or – parallel importation.

Parallel Importation

• Countries import a patented product from foreign market because it is cheaper

• May be patented or a generic drug still under patent (CL)

• Article 31(f) states that production under compulsory license will be primarily for domestic consumption

• State’s have flexibility for “exhaustion of rights”

Additional Flexibility

• Article 30 of TRIPS provides that:Exceptions to Rights Conferred:

Members may provide limited exceptions to the exclusive rights conferred by a patent, provided that such exceptions do not unreasonably conflict with a normal exploitation of the patent and do not unreasonably prejudice the legitimate interests of the patent owner, taking account of the legitimate interests of third parties

What to do?

• Implement laws to– Fully use TRIPs flexibilities– Protect indigenous knowledge– Resist WTO ++ creep in Bilateral or Regional

Agreements– Monitor prices of drugs

AU Ministerial Extraordinary Session

• Africa Group Proposal– Address countries with limited or no local production

capacity• Remove asterisk & footnote on Chairman's text

• Remove impediments to access

• Workable agreement

– AU meeting• First:'reach expeditious' agreement before Hong Kong

• Then 'reach appropriate/workable agreement'

• In terms of para 11 of Doha

• Changed in terms of General Council Decision 31 Aug

Role of “big” countries

• Wanted a workable solution not only expeditious

• Members added in

• SA/Kenya: change to conform to para 11

• Then remove appropriate because duplication

• Then change to General Council Decision

• Implicit retraction of progressive position: Not explicit