We consider these discussions to be particularly important in that they help to ensure that we, the WTO, face up to some of the negative effects of globalization. I think we owe special thanks to the African Group for taking the initiative to propose this special debate, as well as the group of countries like the European Union on the one hand, and Brazil, India and the African Group on the other, whose significant contributions have helped to launch serious discussions.
One way to ensure that negotiations produce an imbalanced result is to confront, at the negotiating table, those who have very specific knowledge, objectives and interests with those who do not. Another way is to fail to implement properly what has been agreed. This is where the problem lies between the TRIPS Agreement and public health objectives.
As the European Union states in its proposal, "it will be the first time that the TRIPS Council discusses intellectual property issues in the context of public health".
Imbalanced negotiations or implementation will obviously lead to the interests and rights of one of the parties being ignored. Some will exaggerate their demands. In extreme conditions, this, in its turn, will lead others to react in a way that could jeopardize the global system of rules as a whole.
It should be made clear before it is too late that excessive demands are not sustainable and that the destruction of the global system of rules is in no one's interest.
This is exactly why we must tackle the problems by reaching a consensus interpretation, a common understanding of the current text of the TRIPS Agreement as regards the issue of public health.
Without going into technical details for the moment, my Government would like to make clear its basic position in these discussions, which we see as the initial stage in a process that will assume importance at the Qatar meeting, by highlighting the following fundamental principles:
(1) Articles 7 and 8 of the Agreement recognize that a private right cannot be made to prevail over a social benefit such as health. Specific provisions were therefore included to prevent:
- abuse of intellectual property rights by their holders;
- recourse to practices which unjustifiably limit trade or are detrimental to the international transfer of technology.
At the same time, the Agreement also provides for:
- promotion of technological innovation;
- transfer and dissemination of technology;
- measures to protect public health and nutrition.
(2) By adhering to the Marrakesh Agreement, WTO Members not only took on obligations, but also acquired rights, the implementation and respect of which are hierarchically just as important as the obligations.
The TRIPS Agreement laid down minimum standards for protection through a basic system of rights and obligations. The wording of the Agreement, which is the fruit of complex negotiations, provided considerable "flexibility" or "margin of manoeuvre" in many of the provisions to enable Members to incorporate them in their domestic legislations.
This margin of flexibility in fact constitutes one of the rights acquired by the signatories to the Agreement. Thus, the Agreement enables Members to develop a legal system that strikes a balance between the protection of intellectual property and their public policies.
In our view, these margins do not need to be "interpreted", since some interpretations would merely be imposed at the expense of others, which is exactly what the authors of the Agreement were trying to avoid during the Uruguay Round.
These margins take the form of different options which the States may use in implementing their obligations in a way that is in keeping both with the TRIPS Agreement and their domestic needs or policies.
(3) There is a general understanding, to which Argentina subscribes, that the system of patents plays an important role in research and development of new medicines.
There are two parallel objectives of the TRIPS Agreement whose fulfilment calls for a uniform understanding of its provisions:
(i) due consideration for the rights of those who invest considerable sums in the development of new medicines; and
(ii) public health needs.
We understand the second of these two objectives basically to mean fair prices, availability of quality medicines when and in the form in which they are needed, and dissemination of know-how.
4. To try to limit the field to a series of specific issues that need to be resolved, such as "differential prices", would be to ignore the true dimension of the problem.
The negotiation of differential prices falls outside the scope of intellectual property rights, and hence is not within the competence of this Council. It is merely a tool to which countries and/or enterprises may resort if they so wish, and if they think that this will enable them to resolve an aspect of the problem.
As stated by the Ambassador of Brazil and the Ambassador of the European Communities, it should in no way interfere with the legitimate right of States under the TRIPS Agreement.
5. Finally, we think it is important to take advantage of the experience of the World Health Organization (WHO) in this area and encourage the Council for TRIPS to work on the basis of aspects of intellectual property - public health - access to medicines already identified by that organization.
Fortunately, the Council is not beginning its work today in a void. At the international level, much has been done over the past years to identify, study and seriously assess, from the public health point of view, the provisions of the TRIPS Agreement which directly or indirectly affect accessibility to medicines.
Alongside the respectable studies by experts in the field and recognized NGOs, and the documents submitted by various countries to this meeting, the WHO has conducted numerous studies in this area.
Any experience that the WHO could transmit to the Council on this subject would be of value for its future work, which we have defined as the search for a consensus interpretation, a common understanding of the TRIPS Agreement seen as a balance between rights and obligations.
