How countries of the Southern African Development Community (SADC) can use the World Trade Organisation and the European Community flexibilities for better access to affordable HIV/AIDS medicines

This paper discusses the ways in which countries of the Southern African Development Community (SADC) can maximise the patent-related advantages that are available to developing countries and regions by flexibilities offered by the World Trade Organisation (WTO) and the European Community (EC). Article 31 of the Agreement on Trade Related Aspects of Intellectual Property (TRIPs) provided only limited derogation to the exclusive rights that a patent holder may have under Article 28 of TRIPs. The entry into force of the agreement in developing countries entailed that important (cheaper) generic medicine manufacturers such as Brazil, China, India and South Africa would not be able to use TRIPs to supply needed medicines. This problem became known as the ‘Doha Paragraph 6 Problem’ as it was included in the 2001 Doha Declaration under the section of TRIPs and public health. The Declaration called for a solution to the problem by the end of 2002. Although this deadline was not met, an interim solution to the problem was worked out by the TRIPs Council of the WTO. This interim solution provided generous options for countries in need. The decision was integrated into the TRIPs Agreement as a permanent amendment in December 2005. In the EC, Regulation 816/2006 was adopted to apply the system which had been crafted at the WTO. So far only one country (Rwanda) has used the system to purchase affordable HIV/AIDS medicines from Canada. SADC is a region that has high levels of prevalence rates of HIV/AIDS. The WTO and EC flexibilities have not been used by SADC countries. One of the advantages of the flexibilities is that benefits are specifically guaranteed to regional trade arrangements like SADC’s. Why has there been use an under-utilisation of the flexibilities? This paper argues that elements such as lack of awareness on the SADC side, the complicated nature of the procedures in the use of the flexibilities, and the actions of international charities explain the limited use of the system in SADC. It advocates for a more proactive involvement of SADC and its member states in the negotiations on the various ways in which access to medical products (especially second line HIV/AIDS medicines) can be eased for SADC’s citizens