Author: Toby Kasper, Co-ordinator of the Access to Essential Medicines Campaign for MSF-South Africa
This paper describes the process that led to - and the meaning of - the 39 pharmaceutical companies’ decision to drop their case against the South African government (regarding the Medicines and Related Substances Control Amendment Act).
It takes a potent combination of factors to force one of the world's most powerful industries to abandon a cause it has pursued for over three years. Just such a moment arrived on 19 April when, cowed by a powerful alliance of public pressure, solid legal argumentation, and government resolve, the 39 pharmaceutical companies suing the South African government announced that they were unconditionally dropping their lawsuit.
What had begun in 1998 as a dispute over medicine and trade law ended as a world-wide public relations disaster for the companies. Over six weeks, 300,000 people from more than 130 countries signed an international petition launched by MSF calling on the companies to drop the case. The European Parliament passed a resolution urging the companies to drop the case, a position echoed by ministers from a number of European governments.
The law at stake, the Medicines and Related Substances Control Amendment Act, was passed in 1997 to make medicines generally more affordable in South Africa. But it was the issue of access to HIV/AIDS medicines that galvanised public opinion. With 4.7 people currently infected with the virus, South Africa has more people living with HIV/AIDS than any other country in the world, and the vast majority are unable to afford treatment. Judge Bernard Ngoepe, presiding over the court case, recognised the voices of these multitudes when he admitted the Treatment Action Campaign, a South African AIDS activist organisation, as an amicus curiae (“friend of the court”) to present evidence on the human impact of lack of access to medicines.
Although the legal obstacles have been removed with the dropping of the case, the South African government continues to insist that it still has no intention of providing the antiretroviral therapy that has turned HIV from a death sentence to a chronic condition in the West. This decision highlights an essential point: strong government leadership as well as flexible intellectual property rights systems is needed in order to effectively combat HIV. MSF programme in Khayelitsha, a township outside of Cape Town, South Africa, recently became the first and only project to distribute antiretrovirals in government primary health care facilities in South Africa.
Although the lack of progress in South Africa itself has disappointed many, the importance of the South African government successfully standing up to one of the world’s most powerful industries in a case that was closely followed from Alaska to Zanzibar cannot be overstated. In many ways, the case was less about technical provisions to reduce drug prices than it was about the rights of a government to place the health of its people before private interests. As such, it sets an important precedent, signalling to other developing countries that they need not buckle under drug industry pressure or Western governments acting at their behest. Today, every meeting on trade and health is accompanied by mass public support to defend the rights of developing countries. This growing popular movement will not go away.
Two months after the resolution of the South African case, the Kenyan Parliament emulated the resolve of its southern neighbour and resisted attempts by the pharmaceutical industry to water down progressive provisions in its intellectual property rights bill
Another battle was won on 25 June when the US, bowing to public pressure, dropped a case that it had brought under the WTO’s panel against a provision of Brazil’s patent law that requires a patent-holder to produce locally. This decision will enable Brazil to continue to encourage its local pharmaceutical production capacity, a vital component of a national AIDS programme that has halved the number of AIDS deaths in the last five years.
These cases are symbolic of one of the fundamental struggles of globalisation. The World Trade Organization, and in particular the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), theoretically contains flexibility sufficient to allow developing countries to pursue policies that support their own developmental strategies, including those with an emphasis on improving access to medicines. In practice, however, multinational companies and powerful Western governments often conspire in an attempt to thwart these goals.
Further, when they were being pressured by industrialised nations to accept the inclusion of intellectual property rights in the global trading system during the Uruguay Round of negotiations that led to the creation of the World Trade Organization in 1995, developing countries were assured that codifying intellectual property rights would attract foreign direct investment and stimulate research and development into diseases prevalent in their countries. However, few if any of these benefits have materialised.
Together these realities have fuelled a burgeoning movement calling for a reassessment of the TRIPS Agreement. As a result, on 20 June, a special session on the public health implications of the TRIPS Agreement was held at the WTO’s Council for TRIPS (which oversees the Agreement). Statements at the session by a number of developing countries made it clear that, as MSF has been advocating for a number of years, it is essential that the Agreement be interpreted in a manner flexible enough to allow countries to place the protection of the health above the protection of intellectual property rights. A number of developed countries also recognised the need for flexible interpretations, with MSF’s advocacy work in the European Union clearly showing dividends in a much-improved EU position.
Although these recent victories in South Africa, Brazil and Kenya have helped swing the pendulum back in favour of developing countries, much work still needs to be done to ensure that the broader patent protection on pharmaceuticals introduced by the WTO does not have devastating consequences for access to medicine.
Moreover, as the case of South Africa sadly demonstrates, it is clear that having flexible laws in place only leads to improved access to medicine if they are greeted by a government that is willing to act.