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We are not against intellectual property protection, but we want to see that health prevails when there is a conflict, explains legendary Brazilian Ambassador Celso Amorim in discussing recommendations of the UN High Level Panel on Access to Medicines

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LYNN FRIES: Welcome to The Real News Network. I’m Lynn Fries in Geneva. In this brief, we look into the recent Geneva visit of legendary Brazilian Ambassador, Celso Amorim. We report on his discussions at the World Trade Organization and at The Real News as Ambassador Amorim talks about the UN Secretary General’s High-Level Panel on Access to Medicines. “Whether it’s the rising price of the EpiPen, or new outbreaks of diseases, like Ebola, zika and yellow fever, the rising costs of health technologies and the lack of new tools to tackle health problems, like antimicrobial resistance, is a problem in rich and poor countries alike “. So states the Report of the UN High Level Panel on Access to Medicines. In keeping with the panel’s mandate, the report’s recommendations are for remedying incoherence between policies and agreements related to human rights, trade, intellectual property rights and public health that were developed with different objectives at different times. An incoherence seen as international trade rules with intellectual property laws that were developed to promote economic growth and incentivize innovation can impede nations from fulfilling state obligations not only to respect but to protect and fulfill the right to health.In short, a misalignment between profit-driven innovation models and public health priorities.A misalignment that allows medicine to be priced out of reach of patients and governments alike. As issues around public health, intellectual property and trade straddle many different UN organizations discussions of the panel’s report reach into many different forums here in Geneva.We feature a discussion hosted at the World Trade Organization as WTO member states were invited to discuss the report with some Members of the High Level Panel and their expert advisers.The event was organized by The South Centre together with the UN Secretariat of the High Level Panel on Access to Medicines and co-sponsored by the governments of Bangladesh, Brazil, India & South Africa. We focus on the narrative explained by panel Member, Ambassador Celso Amorim. The legendary ambassador is Brazil’s longest serving Minister of Foreign Relations. Ambassador Amorim’s former posts include his service as Brazil’s Minister of Defense and as Ambassador to the UN. “Acting Globally”, Celso Amorim’s latest book is a book of his memoirs. One of three narratives is Brazil’s leading role in the Doha Round of multilateral trade negotiations. Celso Amorim’s leading role in these historic negotiations is central to his current role as Chairman of UNITAID and Member of the UN High Level Panel on Access to Medicines. This was explained by Ambassador Amorim at the recent WTO event featured in this report. We go now to clips of that event as Ambassador Amorim is given the floor. AMB. AMORIM: It’s a very complex report. I will just concentrate on one aspect which was the one aspect that I thought I thought I could, I would not say make a difference but, at least have some knowledge which is the question of TRIPS flexibilities and TRIPS plus provisions to some extent and that for good reason. I was, well of course this room is totally new to me, but I was ambassador here to the old GATT when the TRIPS Agreement was accepted. I had great reluctance in accepting it, I must say. And the Brazilian Congress had great reluctance in accepting it because it imposed many restrictions on our capacity of industrializing ourselves not only limited to the pharmaceutical field. But in the end, we thought we could not stay out of the world and so we did. I still remember, just trying to be very brief, I still remember when the end of the discussion on the TRIPS group came out. It was headed by a Swedish ambassador, (inaudible) and I had an adviser who is now ambassador somewhere I don’t know, he, (inaudible)>. And I remember how disappointed and discouraged we were. And I had to point out to him, well (inaudible) we still have some ambiguities maybe we will be able to work on them. And he told me, well but we’ll lose. Wherever it comes ambiguities the stronger will show their force and we’ll lose. Well, but of course, as it happens in the world, the evolution of the society and the problems and especially I would say HIV aids and the forces that were unleashed by the epidemics of HIV aids changed a little bit the political situation. When the Uruguay Round was launched, and I signed the Uruguay Round so I am not speaking against it necessarily. So when the Uruguay Round was launched, it was really for the globalization of capitalism. To make sure that there would be no restrictions to profit and to the work of the multinational companies. But, of course, in a multilateral setting there are always discussions. We could here and there, and I won’t go into the technical detail because Mr. Correa knows much more than I do, but we were able here and there to put some provisos, well maybe this, maybe that. And what happened because of this evolution that I mentionned especially in the last decade of the 20th century because of HIV AIDS, the political siutation in the world to some extent changed. We felt that directly because Brazil was brought to court, so to say, by the United States concerning our patent law. And in the end they had to give up because they saw that it was not so easy. And somehow those ambiguities, probably the biggest step forward the Doha Declaration means, these ambiguities became flexibilities. So they were accepted as established flexibilities. They were no longer ambiguities so they could no longer be used against us, against developing countries, against countries with the need or other countries for that matter but in that case mainly developing countries. And that’s what we have in the Doha Declaration. All of you are familiar with the Doha Declaration but I think it is useful to remind you of one specific paragraph, which is paragraph 4. I won’t mention paragraph 6 which still has some polemics. But paragraph 4 says “We agree that the TRIPS Agreement does not and should not prevent Members from taking measures to protect” that’s very important “it does not and should not”. So it’s both the factual and the prescriptive “should not prevent Members from taking measures to protect public health. Accordingly while reiterating the commitment to the TRIPS Agreement we affirm that the Agreement can and should” again the existence and the prescription “can and should be interpreted and implemented in a manner supportive of the WTO Members right to protect public health and in particular to promote access to medicines for all”. So really I think this is the core. Of course, paragraph 6 is important for the countries that did it “I have the capacity to produce” is another matter. But in any case, this is the core of the Declaration. So I found that my main role was to recall that because there were of course many good ideas to improve on the language. But I have seen many times whenever we try to improve on the language, in the end we lose what we had got. And that was a very specific situation I have to tell you that we got. Not only because we had this very strong lobby of people infected with HIV AIDS or the community that was preoccupied with HIV aids but there was also another factor which was Sept 11th. The United States needed desperately to have the launching of the Doha Round in order to avoid the accumulation of the economic crisis. And this is why, this thing which appeared to be the most difficult was the first to be accepted in Doha. I negotiated that personally so I know more or less the meaning of each word and why it is there. What we got here was somehow an exemption from trade retaliations within the WTO. We couldn’t get more than that. That was the main objective. And that’s why I think you will see, if you read the goal number 3 of the SDGs [Sustainable Development Goals] or other Declarations in several fora, people agreeing. But when it comes to trade then they abandon that. And they use, if they cannot bring to retaliate in the WTO, they use bilateral, plurilateral agreements. I think it has been the crucial point for countries that have tried to do….I don’t want to mention names of countries here but we know that in South East Asia, in South America, countries suffered quite a lot of pressure from the laboratories and from governments including threats that went much beyond trade.not to apply compulsory licenses or not to apply other TRIPS flexibilities. That’s why I want to mention that in my opinion the most important, and the language is very strong, the most important paragraph in the recommendations of the High Level Panel is in 2.6, the recommendations that relate to IP [Intellectual Property]. The chapeau actually, when it says “World Trade Organization (WTO) Members should commit themselves at the highest political level.” So that would not be anyone, not just the trade minister, not the delegate in the Human Rights Council but “at the highest political level to respect the letter and the spirit of the Doha Declaration on TRIPS and Health, Public Health, refrain from any action that will limit their implementation and use in order to promote access to health technology.” What I am saying now may sound…it would be utopian anyway to some extent but we have to fight for utopia. That’s the role that we have… It sounds even more utopian now because I just read the document which I don’t know if it was approved yet which would be the national trade policy of the biggest power, still biggest trading power in the world, in which among other things it is said “that they should ensure U.S. owners of intellectual property have a full and fair opportunity to use and profit from their property. They should resist efforts, resist efforts, by other countries or international bodies like the WTO to weaken these rights and benefits and furthermore to use all possible sources of leverage, all possible sources of leverage.” All sources, would that include military force? I don’t know. “All sources of leverage to encourage other countries to open their markets to US exports of goods and services and protect US intellectual property rights.” LYNN FRIES: We now bring this discussion to The Real News. Please join me in welcoming, Ambassador Celso Amorim. Ambassador Amorim, welcome. AMB. AMORIM: Thank you, very much. LYNN FRIES: Free trade agreements based on profit-driven models of innovation obligate governments to respect intellectual property rights. In the case of health, governments that signed the World Trade Organization multilateral agreement on intellectual property, the TRIPS Agreement, can use TRIPS flexibilities to act in the public interest. The use of these TRIPS flexibilities by governments can be impeded, for example, by other free trade agreements most notably ones with TRIPS plus provisions. Let’s pick of the conversation from there. AMB.AMORIM: Of course, the question of access to medicines has several dimensions but one of them has to do with the intellectual property and the patent systems. And in the WTO, we were able to evolve some rules, first, in the TRIPS Agreement -the Trade Related Intellectual Property Rights Agreement- when the WTO was created. But as things evolved and new realities appeared, including the HIV aids and many others, we were able to have a clarification of the TRIPS Agreement when we had the Doha Declaration on TRIPS and Public Health. Which is extremely important and which really makes it clear the flexibilities that countries, governments, have to deal with public health in relation to patent rights. And now, what happened recently in relation to this subject? Well, the countries that have the biggest interest in intellectual property protection, which is right we are not against intellectual property protection, but we want to see that health prevails when there is a conflict. They try to work either on bilateral agreements or what you might call plurilateral agreements of the kind of what was the TPP LYNN FRIES: In the context of trade negotiations, can you clarify what multilateral means? AMB. AMORIM: That’s a very interesting question because at least from my point of view we see a lot of confusion even in the US. When people discuss now the policies of the present President, quite irrespective of the value judgments, they say well they are withdrawing from the multilateral setting. And I think when they refer for instance to TPP, the TPP, the Transpacific Partnership, is not multilateral. It’s a regional thing. It’s not the whole world. So it’s a group of countries irrespective of the merits that you might see or not see. Like NAFTA is not multilateral. It’s a different thing that you have to deal separately. The real multilateral body in terms of trade is the WTO. We favor very much – you asked the multilateral – the multilateral setting, so the broad setting, the world setting not just the regional or a group of countries for these negotiations that involve aspects that actually go beyond trade because we are speaking of the lives of people and the possibility of using generic drugs which are much cheaper. LYNN FRIES: It was through multilateral negotiations that you got TRIPS flexibilities. Talk of some of the ways these flexibilities have made a difference in peoples’ lives AMB. AMORIM: In developing countries, yes. I mean, they’re the flexibilities that enable us to have a medicament for HIV aids or for TB or for other…even cancer or high blood pressure, whatever, at a much lower price than is charged in the market. And that flexibility is enshrined in the Doha Declaration. Now coming back to the panel, we do recognize, of course, that the laboratories have to be compensated for, for the research they do. By the way, much of the research is not them. Much of the research is done by public funds anyway. But anyway, if they do, they have to be compensated for, it’s private business. But we think it has to be done in a different way. LYNN FRIES: Before talking about doing things in a different way talk about the prevailing way of doing things based on profit-driven innovation models with international enforcement mecanisms AMB. AMORIM: I mean, it’s very, I mean even the developed countries it is relatively -well not easy, nothing is easy- but it is accepted that if you have funding, for instance, for a new weapon, it is not much discussed. But if you have public funding for a medicine or for public services then there is a lot of opposition. So because this is the political reality, they try to recoup the investment through the intellectual property both domestically and globally. And I think some of the big challenges that we are facing nowadays not only developing countries but even in the developed world like the antimicrobial resistance, for instance, the level of investment is so big that you won’t be able to recoup through patents anyway. So you have to think of a different model. LYNN FRIES: Comment on your work at UNITAID as an example of the need for a new model even when levels of investment are not so big. AMB. AMORIM: I am the Chairman of the Board of a small organization which acts very specifically in some, what might be called some market failures in terms of having medicines for certain diseases or for certain groups of populations, for instance…children, pediatric formulations for treating HIV AIDS. That is not of interest to developed countries anymore because it doesn’t happen so often. So there is no market for that. So my very active and dynamic organization acts in this kind of thing, quick testing for TB, things like that. I think when we come to the High Level Panel it deals with the whole model of how intellectual property or the innovations should be dealt with. And I think that this whole idea of delinkage -of separating the idea of how you finance the research from the price of medicines- is really an essential one. And I mentionned to you in relation to antimicrobial resistance but it applies to many other things, even to non-communicable diseases also like cancer and others, how to make the medicines affordable and still continue doing your research. Well, I don’t see any other way from public financing, whether it’s national or international or a mixture of both depending on the situation of the country. Of course if you take a small country like, I don’t know, Malawi or whatever it will depend a lot on international, in the United States it could be basically national, in Brazil it probably would be a mixture. But anyway it has to be public financing that does the bulk of it. And then maybe of course, I don’t know, in some cases that are very specific you can also still have the patent protection. But certainly in areas that have great impact on public health delinkage is very important. So again, what I wanted to stress because that is the situation we face today, this is there. It’s a fact of life. It will be very difficult to change. It will take a long time. I mean if you want to apply this concept of delinkage some countries may apply, some others will not apply. But we have a defense, at least, a protection to avoid abuses. And this protection is encapsulated in the Doha Declaration on TRIPS and Public Health. So that’s what we want to save. And that’s why all these agreements which are TRIPS plus, they are so negative. The public authority, they have to treat health, the way they treat defense. I mean, nobody asks to get the money in the market for a new weapon. So the weapon to save lives has to be treated the same way. People have to admit that it is the public authority that somehow has to finance. Of course, it’s money from the taxpayer but they will have to pay much more later on with the diseases, with deaths and so on if they don’t do that. LYNN FRIES: Ambassador Celso Amorim, thank you. AMB. AMORIM: Thank you. LYNN FRIES: And thank you for joining us on The Real News Network. ANNEX: For interested viewers, further details follow concerning DELINKAGE and TRIPS plus provisions. ————————- END

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Celso Amorim has served as Brazil's Minister of Foreign Relations under President Itamar Franco (1993-1994), and again under President Luiz Inacio Lula da Silva (2003-2010), and as Minister of Defence under President Dilma Rousseff (2011-2014). Amorim is the longest serving foreign minister of Brazil to date. Currently, Ambassador Amorim is the Chair of UNITAID, Board Member of the Advisory Council of Salamanca University, Chief of the Organization of American Sates' mission of Electoral Observation in Haiti, and member of the UN Secretary General's High-Level Panel on Access to Medicines. In 2015, he was a member of the UN Secretary General's High Level Panel on the Global Response to Health Crises.