Access to medicines and the TRIPS Agreement: what next for sub-Saharan Africa?

Abstract

When the proposal for an international intellectual property (IP) rights protection was included as an item in the agenda for negotiation in the Uruguay Round of World Trade Organization negotiations, it was strongly opposed by developing countries including Brazil, India, Argentina and others. The developing countries and least developed countries (LDCs) from Africa, realising the difficulties the Agreement would put them in, had vigorously campaigned against the inclusion of IP rights protection within the multilateral trading system. One of the chief areas of concern for the developing countries and LDCs was the difficulty of accessing affordable medicines under the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) regime. While the resistance was gradually eroded and eventually neutralised during the long drawn Uruguay Round of Negotiations, the developing countries and the LDCs gained a few concessions in the post-TRIPS era in the form of Doha Declaration, which in their opinion would have given them the opportunity to invoke the emergency provisions of the Agreement in times of need to access essential medicines for their citizens. This was not to be the case, as the ground realities were difficult to manoeuvre and there were more impediments to invoking the flexibilities than originally perceived. This article will suggest that the best option available for sub-Saharan Africa is seeking an outright amendment of the TRIPS Agreement, as working within the parameters of the Agreement to achieve the goal of access to affordable medicines is not a viable option. It will also be argued that unless it acts urgently to seek the amendment it may be too late, as it could find itself left behind by both developing countries from other continents and patent-holding developed countries alike.