|
|
|
Pharmaceuticals, Patents, Polemics and Pretoria
|
|
|
5. A foreign policy dimension to TRIPS?
|
| |
Pretoria has sought to position South Africa as a champion of the developing world. Solidarity with the South, identification with Africa, and a commitment to reformist free-marketism represent a neat coincidence of ideology and interest. This has most recently been demonstrated by President Mbeki's active role in crafting and marketing the New Economic Partnership for Africa's Development (NEPAD).
Does TRIPS offer any opportunities for Pretoria's foreign policy, which takes as its point of departure Africa's political, economic and social recovery?
First, South Africa-in partnership with other leading Southern states, such as Brazil, Nigeria and India-should actively campaign to roll back the TRIPS Agreement, to remove it from the WTO and return it to the World Intellectual Property Organisation (WIPO). TRIPS does not belong in the WTO discipline for the following reasons:
- there are enormous differences in experience of IPRs laws and policies among the WTO members;
- there is no consensus on the proper role and elements of IP law and policy, particularly as applied to countries in vastly differing circumstances and levels of development;
- the WTO is a trade forum ill-adapted to handling IPRs issues, which run the risk of becoming politicised; and
- there is the possibility that applying WTO dispute resolution mechanisms to IPRs rules poses risks to the independence and sovereignty of law enforcement authorities in the member states.27
Such a roll-back could assist the moderate reformist trend in Pretoria's multilateral diplomacy, which aims to fix neo-liberalism.
28
Second, the South African government should seek some accommodation between pharmaceutical companies and indigent developing countries. This should aim towards affordable access to, or compulsory licensing of, patented drugs, particularly drugs listed as essential by the World Health Organisation (WHO). Pretoria should make it clear to pharmaceutical companies that the intention is not primarily to deprive them of their profits. The intention is to address an emergency situation in the form of the Aids pandemic. Pretoria should also encourage MNCs to make good on their 'best endeavour' commitments to transfer modern, relevant and environmentally sound technology to Africa and the developing world.
Third, while President Mbeki's efforts to attract foreign direct investment (FDI) to South Africa require that Pretoria be publicly seen-both at home and in the WTO-to support IPRs and the security of private property, this need not translate into an uncritical acceptance of TRIPS per se. Although a uniform system of IPRs protection appears to run counter to the interests of most developing states, the opposite extreme cannot be taken as the ideal either. Pretoria should argue that the system of IPRs protection adopted by individual countries should reflect the degree of industrial and research maturity of that country. The implication is that a uniform system (as exemplified by the TRIPS Agreement) curtails the possible advantages of a flexible system based on the principle of 'national treatment'.
Fourth, South Africa should actively support the African position that plants, animals and microbiological processes-that is, life forms-should be excluded from patent protection. For plants, developing countries should seek to set up sui generis systems tailored to their own needs (including farmers' rights to protect informal or traditional remedies). Animals should be excluded from patenting given the dangers inherent in the release into the environment of genetically modified organisms and the loss of biodiversity.29
Finally, foreign policymaking in South Africa should be 'democratised'.30
Pretoria should actively encourage civil society and non-governmental organisations (NGOs) to support its
efforts to reform the WTO and its disciplinary instruments-whether through research, advocacy or
activism, so that they serve the goal of sustainable development. This also implies capacity-building
on WTO issues among South African diplomats, trade negotiators and NGOs, particularly the new
'Singapore issues'. As Paul Williams31 noted, 'Foreign policy experts must familiarise themselves
with a daunting agenda which pays attention to medicines, mercenaries and miners as well as tanks,
traders and TRIPS'.
Footnote:
- CUTS, op. cit., p.2.
- See Nel P, Taylor I and J van der Westhuizen (eds), South Africa's Multilateral Diplomacy and Global Change: The Limits of Reformism. Aldershot: Ashgate, 2001.
- Cosbey A, op. cit., p.14.
- See Le Pere G & B Vickers, Civil Society and Foreign Policy in South Africa. Paper delivered at the South African Political Studies Association (SAPSA) Colloquium, September 2000.
- Williams P, 'South African foreign policy: Getting critical?', in Politikon, 27, 1, 2000, p.82.
|
|
