With the recent postponement of the World Trade Organization (WTO) Ministerial Conference in Geneva, uncertainty swirls around the fate of the WTO TRIPS Waiver on intellectual property of COVID-19 medical tools, which was to have been central to the ministerial discussions and the culmination of many months of mobilisation and support for the proposal first brought by India and South Africa in October 2020.
Over the last month, many people involved in campaigning for the Waiver will also have been reflecting on another key moment at the WTO 20 years ago. This was the signing of the Doha Declaration that spelled out the primacy of health over business or, more broadly, trade interests. At the time, this was hailed as a clear victory for developing countries, facing the obstacles thrown up by the TRIPS Agreement in terms of access to medicines.
Here, we publish a series of blogs that reflect on the Doha process at the WTO, its impact and legacy today. First is an interview with Leena Menghaney, head of the MSF Access Campaign in South Asia. Leena trained as a lawyer and worked in a legal aid centre supporting people with HIV in Delhi before she joined MSF.
What from your perspective was achieved at Doha 20 years ago?
So, the WTO’s TRIPS Agreement was seen as a very technical agreement, dealing as it did with intellectual property. And what Doha did was, it spelled out clearly the impact of intellectual property on people. That we have to recognise that governments will have the sovereign right to act if intellectual property acts against the interests of people.
Doha did the spelling out of what was obvious to some of us, but not to the rest of the world perhaps, that you need to balance private intellectual property rights with the people’s rights to access to medicines.
Beyond what was won through the declaration itself and its impact on access to medicines, what other legacy is there from Doha?
Another major achievement is something much more organic and perhaps one people don’t put their finger on, is that, for the first time, civil society from different countries came together to demand something of governments. Bringing together a community and a movement on access to treatment, started in Doha. All of us are Doha’s children, in a way.
So that was what was achieved, I think, and sometimes people don’t value movements, but movements are how you achieve political change. So definitely, Doha was one of those moments where civil society from different countries, patient groups, people living with HIV, activist lawyers, and MSF met each other for the first time, talked to each other for the first time and got together.
Today we are back at the WTO, campaigning hard for a waiver on intellectual property of COVID-19 medical tools. Do you think Doha did not go far enough to ensure access?
Yes, there was unfinished business and I think we are now trying to complete the dots with the TRIPS Waiver. We wanted the recognition of the right that governments had to act to protect people and access to medicines. While that was actually spelled out at Doha, and governments actually agreed to it, they didn’t in fact adhere to it.
Over the last 20 years, governments have been undermining those public health rights — whether it was compulsory licensing, the right to challenge a frivolous patent to protect competition needed to reduce high prices and the other TRIPS flexibilities. So while Doha was our alma mater, in reality, governments did just absolutely the opposite.
What was missed out was a legal binding agreement on governments that would allow governments in the South to not grant or enforce patents if public health and the right to treatment was at stake. Now for 20 years we have fought the battles of access, drug by drug, country by country, it’s been an exhausting journey.
How did Doha impact your own life and work?
In March 2005, no one in my legal aid centre in Delhi really wanted to do intellectual property as they thought it was boring! I was one of the few juniors in our legal advice centre, and so I was handed this issue to look at patent laws on medicines, and I started to learn about it.
Then things really took off when we began to advise lawmakers on reforms to the country’s patent law forced by the obligations of the WTO. When we were talking to members of parliament about the fact that the patent law needs to have health safeguards, we cited Doha and told them that they needed to include the TRIPS flexibilities in the legal proposals.
That’s how Doha became a reference point that you could do things for people and to protect generic competition, if it saved lives, and it outweighed the interests of big pharma. So Doha became a reference point in my life.
I think Indian civil society won one of the biggest battles after Doha, which was to challenge patents before they were granted. So that was my reference point. And then I essentially spent 16 years challenging patents in India and other countries. So that’s how my own journey started from Doha.
You subsequently joined MSF’s Access Campaign — what impact would you say the Doha declaration had on the people in MSF’s own projects?
The Doha declaration had a very concrete impact on the care we could offer to people living with HIV. Every time we put a new generic HIV medicine on the shelves of an MSF pharmacy, this was an outcome of the work we did around Doha. Challenging medical patents, working on compulsory licensing, this was our daily work to open up access to these lifesaving antiretroviral drugs.
And it was always startling how slow the change was. When you challenge patents, it’s a lot of technical work, it’s a lot of explaining to people, mobilising communities, talking to MSF. And then 10 years later, you suddenly see the medicine on someone’s shelf in an MSF project, and a doctor tells you, “This medicine has made things so much easier for us because viral loads fall very fast.”
And then you’re suddenly looking at the medicine, and you say, “Wow, we worked on this, we challenged the patents,” and we did this because Doha spelled out for governments and policymakers that we could.
You’ve been very involved in the MSF campaign to support the WTO TRIPS Waiver — how do you see the connection between Doha and this work and where are we today?
I think the arguments have advanced over the years. Certainly I think discussions about intellectual property barriers have become more mainstream as the global conversation about injustice and discrimination has erupted. You can see the entire human rights movement talking about these barriers created by intellectual property now.
They understand that this is about discrimination. This is about racial discrimination. This is about people of colour in the South and marginalised communities being deprived, systematically, of the treatments that they deserve at par with people living in high-income countries.
So this time around, if you look at who’s talking about intellectual property barriers, and the impact it has on people, you can see human rights activists and experts. And this includes lawyers and judges and people who work on mainstream human rights issues. You’ve got Amnesty, you’ve got Human Rights Watch, and you’ve got a large coalition of human rights groups from Latin America to Asia to Africa, challenging and asking, why will they not receive the vaccine and treatments on a par with high-income countries.
And it’s not an issue of charity or donations any longer. It’s become an issue of rights. This discussion is by no means going to end at the TRIPS waiver.
The Waiver proposal has been on the table now for over a year — why do you think we haven’t seen the full support we need for it to be adopted?
There’s a lot of energy now. But the system is incredibly difficult to reform and change. And I would just say that I feel that we are at the cusp of what women must have felt when they were fighting for suffrage — the right to vote. And it’s just there, but it’s not there. And we’ve spent, what, a few centuries fighting for change to get the right to vote, and every generation of women in every country came along with their own ideas and thought processes and strategies to get the right to vote.
And I think this is exactly where we are in the TRIPS Waiver. Every generation of activists is coming up with their strategies to say that we have the right to produce these medicines at a much more affordable rate. And we haven’t done the battle yet. We are on the cusp of it. But we should remember that it’s all about time. We’ve barely spent, what, 20 years trying to reform the system. In any other era, that would be nothing. We had 100 years of waiting for suffrage!
Are you frustrated by the lack of progress?
Yes. The fact is, in the middle of the pandemic, 1% of people in the African Union were vaccinated in the first quarter of this year versus 50% of people in high-income countries. In HIV/AIDS, millions lost their lives while pharmaceutical corporations blocked affordable lifesaving generics. That did not happen by accident. That happened by design. South Africa backed this proposal, the Waiver, all the way that would not allow this issue to die down at all. They said, OK, if you won’t supply us, if you won’t allow the supply to come out of your corporations to us, we will take it up on us to make these supplies ourselves. But neither the technology, nor the intellectual property, have been waived or shared.
What do you think the reaction will be from civil society if a waiver is not adopted finally?
There was dismay at the cancellation of the WTO ministerial conference. I feel that if negotiations don’t now move forward on the TRIPS Waiver negotiations, countries should just decide unilaterally not to enforce any kind of intellectual property for COVID-19 medical products.
I think this is a case for complete civil disobedience. If there is no agreement on the TRIPS Waiver, countries should not enforce intellectual property at all. They should now take another hard look at their patent laws and just reform them as required at the national level. Brazil and South Africa are on the cusp of reforming its system and others should do it too.
courtesy MSF access campaign