The South African delegation welcomes the opportunity provided by this meeting, to discuss the relationship between the TRIPS Agreement and public health. We fully associate ourselves with the statements made by Zimbabwe on behalf of the Africa Group and by Brazil on behalf of over 50 countries.
Our intervention is simply to supplement those statements with some additional perspectives.
In our view, the objective of today's discussion is threefold:
• first, to identify the key provisions of the TRIPS Agreement as they relate to the production, trade and affordability of drugs needed to treat serious illnesses prevalent in developing countries;
• second, to re-affirm our common understanding that the TRIPS Agreement strikes a balance between the importance of protecting patents and ensuring that governments are able to take all necessary measures to provide their citizens access to medicines at affordable prices. This common understanding among Members would establish the necessary predictability and certainty without the need to resort to litigation; and
• third, to initiate an ongoing process of discussion amongst WTO Members, leading to the fourth WTO Ministerial Conference in Doha, where Ministers should seek to confirm that the TRIPS Agreement is supportive of all necessary measures to promote public health objectives.
Life threatening diseases in South Africa, Southern Africa and Africa constitute the most serious developmental challenge confronting our continent, and are beginning to emerge as a serious challenge in other regions. These threaten to obliterate progress on all other fronts. It is an immense challenge that will require a wide-ranging multi-faceted response over many years by Africans themselves, and with the support of the international community.
The central question facing Members of the WTO, given this Organization's particular remit, is: "What will be our contribution to meeting this challenge?"
In making similar points to those contained in the Group's submissions referred to earlier, it may be helpful to draw on South Africa's recent experience.
In 1998, the Pharmaceutical Manufacturers Association of South Africa, together with thirty nine pharmaceutical companies, initiated a three year legal battle to prevent the South African Government from implementing its 1997 Medicines and Related Substances Act. At issue was the Government's right to utilize the public health safeguards available under the TRIPS Agreement, with the Association charging that the legislation in question violated the Agreement. At virtually the same time, a major trading partner challenged South Africa's proposed health legislation on similar grounds.
Earlier this year, the Pharmaceutical Association and its affiliates unconditionally withdrew the charges and announced that the 1997 Law was framed in a manner consistent with the TRIPS Agreement. In September 1999, South Africa reached an understanding with a major trading partner that clarified that the provisions of the Medicines Act were not inconsistent with the TRIPS Agreement.
The South African Government had always maintained that the legislation in question was indeed consistent with the TRIPS Agreement and that both challenges were tantamount to upsetting the delicate balance that exists in the Agreement. In effect, both challenges were demanding "TRIPS plus" legislation.
A favourable outcome on both counts was a demonstration of the Government's resolve to ensure a supply of more affordable medicines, since medicines prices in South Africa have often been much higher than in many developed and wealthier countries, both in real and in purchasing power parity terms.
The basic correctness of the policies, technical weaknesses in the challenges to the draft legislation, as well as wide support from domestic and international civil society, combined to ensure that the South African Government position prevailed.
Given that TRIPS was not drafted with current health concerns in mind, and while the outcomes of both of these challenges were favourable, the very fact that the challenges were raised in the first place, suggests the need to confirm, multilaterally, the existing balance in the Agreement.
It is also important to recall that, in May 2000, former President Clinton issued an Executive Order that prohibited the US Government and its agencies from challenging any measure being introduced by Sub-Saharan African countries to address the HIV/AIDS endemic that are consistent with our shared understanding of the safeguard provisions in the TRIPS Agreement.
The earlier statements by Zimbabwe and Brazil have identified the relevant provisions in the Agreement that relate to health policies, and both submissions have asserted a reading of those provisions that supports the introduction of appropriate health measures. We subscribe fully to the reasoning contained in those statements.
In conclusion, WTO Members should consolidate and re-affirm this common understanding by incorporating into the preparatory process leading to the fourth WTO Ministerial Conference in Doha, an ongoing discussion to prepare appropriate recommendations for Ministers' consideration.