8 March 2017 – Statement of the World Trade Organization – HRC 34 – Panel on Access to Medicines

On 8 March 2017, the World Trade Organization delivered the following statement at the Human Rights Council’s panel on Access to Medicines.

WTO statement – Antony Taubman

It’s an honour for the WTO Secretariat to join this distinguished panel. Today’s discussion is a welcome step forward in the journey together towards the shared goal of access to medicines for all, and promoting the development of urgently needed new medicines, recognizing the centrality of the human rights perspective for this collective effort.

For the WTO, the Doha Declaration was a significant milestone on this same journey. Unanimously, at the highest political level, Doha framed the legal, practical and policy context of TRIPS squarely within a public health setting. Doha remains a benchmark for policymakers today, all the more pertinent in the light of the SDGs, the growing complex of regional and bilateral trade agreements, and the renewed multilateral dialogue exemplified by the very Resolution that established this panel. In 2001, the then High Commissioner for Human Rights called for closer links between the promotion and protection of human rights and TRIPS. So today’s dialogue has deep roots, and perhaps Doha did help to define the path ahead.

Certainly, the Doha Declaration has taken us far – it’s the basis for the current TRIPS exemption for LDCs until well past the SDG target date, and for the TRIPS amendment which, since its recent entry into force, gives legal certainty to an additional pathway for access to affordable medicines. The coherent, health-centred view that Doha promotes has also guided a great deal of practical action. Our technical assistance and policy dialogue in this area are ever more collaborative and inclusive, while remaining focussed on strengthening the self sufficient capacity of developing countries themselves to identify, review and implement the full range of policy options to meet their public health needs and priorities. We are far from complacent, however, and recognize the need to further strengthen coordination and collaboration across the multilateral system: each agency and program has much experience and expertise to offer.

Trilateral (WHO WIPO WTO) cooperation manifests this holistic, inclusive approach, a conscious effort by three specialised agencies, led directly by their Directors General, to work towards policy and practical coherence for public health, including recognition of the human rights dimension. One trilateral initiative, a joint study, expressly framed the access and innovation equation within a human rights context and articulated a wide range of policy measures and practical experiences. It was produced as a practical toolkit, as an exercise in full transparency, and as a template for coherent, comprehensive and fact based technical assistance. But it’s only one illustration of a diverse pattern of multilateral collaboration, both in Geneva and in the field, to support governments as they pursue diverse paths to promote access and innovation – recalling “the many ways towards the full realization” of the right to health mentioned in Resolution 32/15. For instance, our annual flagship capacity building workshop on Trade and Health – modelled on the holistic approach of the trilateral study – has addressed the human rights dimension of access and innovation, including a briefing on the UNSG’s HLP report. The WTO submission to the UNSG’s High Level Panel offers a more detailed discussion of the challenges of coherence.

WTO members have shown continuing engagement with these issues in the TRIPS Council, drawing on the trilateral study, and recently also addressing the High Level Panel report. The Council is well placed to serve as a forum for governments to share and review experiences and new measures for medicines access and innovation, a policy role earlier recognised in Sub-Commission on Human Rights Resolution 21 of 2001.

Since Doha, we now have a much greater wealth of experience and data that can set the multilateral policy framework in a practical, operational light. Doha clarified the parameters of the available policy space – but left open the practical question of how best to navigate through that policy space; how best to flex those flexibilities. Multilateral collaboration for technical assistance and policy support would benefit from a more systematic empirical foundation: distilling lessons from the full range of practical experience in financing, procuring and developing medicines and other medical technologies, at international, national and program levels; and guided by globally inclusive data on patent coverage, regulatory measures, prices, actual access to medicines and the future epidemiological outlook. No single set of policy prescriptions can apply identically for all UN Member States and WTO Members. But building an information platform would support all governments as they confront the daunting health challenges that lie ahead, assisting them to make effective use of their rights and the flexibilities within the system, and to fulfil their related human rights responsibilities.

TRIPS flexibilities in a wider context

The focus has been very much on TRIPS, and TRIPS plus measures, and I do not mean in any way to diminish that focus. However, if we are looking at trade agreements overall it is important to recognize that TRIPS policy options and flexibilities do not function in isolation from other policy settings – procurement policy and practice (use of TRIPS flexibilities is, after all, part of a medicines procurement strategy); competition policy (a vital element in ensuring the public health benefits of generic pricing); pricing policy; and wider trade settings (bearing in mind that obstacles, costs and delays in trade disproportionately and gravely affect the more vulnerable countries most dependant on trade for their medicines needs.