The Brazilian law of intellectual property rights, law no. 9279 of May 15, 1996, deals with the matter of compulsory license in articles 68 and 71. Article 68 sanctions abuse of economic power including the formation of cartels and trusts, provided these have been found by administrative anti-trust court or judicial decisions. Article 71 deals with compulsory licensing deriving of a situation of national emergency. Brazil has up to the present moment never availed itself of either legal possibilities. On one hand, the present manufacture of antiretroviral drugs by government laboratories, provided in Brazil´s AIDS programmes, is allowed as the respective patents are not protected by Brazilian intellectual property rights law, which came into force in 1997. On the other hand, Brazil has not yet declared a state of national emergency in view of the AIDS epidemic.
However, Brazil has started negotiations for the licensing of new drugs with the purpose of having them manufactured locally at low cost for gratuitous distribution to the affected population under the relevant national health programmes. These negotiations have become acrimonious in view of a great reluctance on the part of the multinational laboratories to grant the licenses. Such laboratories fear that the emulation of Brazil´s system by other developing countries, and the cross-provision of drugs thus licensed amongst emerging economies, will adversely affect their present extraordinarily high profitability returns.
On February 1, 2001, the date when a World Trade Organization (WTO) panel was established to examine the dispute, the Nobel Prize Doctors Without Frontiers (Medecins sans Frontieres) issued a statement in Geneva calling on the USA to withdraw its WTO complaint against Brazil. The group said US challenge “might handicap the successful Brazilian AIDS programme, which is largely based on Brazil´s ability to manufacture affordable treatment.”
The Paris branch of Act Up, the AIDS activist group, also issued a statement on the same date declaring that “the lives of 1,000,000 HIV positive people in Brazil were hanging in the balance” pending the outcome of the WTO ruling.(4)
This action by the USA against Brazil before the Dispute Resolution System of the WTO not only aims at denying the benefit of article 31 of the TRIPS agreement, but is yet another attempt to derogate other international treaties in the benefit of the interests of its pharmaceutical laboratories. Such other treaties include, but are not limited to, the Rome Statute of the International Criminal Court, of 1998, which in article 7, 2, defines extermination as including “the intentional infliction of conditions of life, “inter alia” the deprivation of access to food and medicine, calculated to bring about the destruction of part of a population.”(5) In addition, article 12 of the International Covenant on Economic, Social and Cultural Rights, open to ratification by Resolution 2,200-A of the General Assembly of the United Nations(6) determines that the states parties to the pact recognise the right of all persons to enjoy the highest level of physical and mental health. Furthermore, under the same Covenant, the parties undertake to take the necessary measures to ensure the prevention of professional, endemic and epidemic diseases, as well as the fight against them, by means of the creation of conditions to ensure to all medical assistance and medical services in such cases. Such rights are also recognised by the Additional Protocol to the Inter-American Convention on Human Rights in relation to Economic, Social and Cultural Rights. (7)
The most important international treaty of all that deal with the matter is undoubtedly the Charter of the United Nations (UN), which in article 55 establishes that the member states shall promote solutions of international economic, social, health and related problems (b) and respect for human rights and fundamental freedoms, without distinction (c). The judicial organ of the UN is the International Court of Justice (ICJ) (article 92). Whilst nothing in the charter of the UN prevents member states entrusting the solutions of their differences to other tribunals (article 95), they have right to demand the jurisdiction of the ICJ.
The treaties of the Uruguay Round of the GATT, which created the WTO, do not have a superior hierarchy to other international treaties. On the other hand, the DRS of the WTO is not empowered by any relevant treaty, including those of the Uruguay Round, to examine matters pertaining to the conflict of treaties. The Dispute Settlement Understanding does not even allow the examination of preliminary matters by the Dispute Resolution Body. Why, in view of such important legal considerations as well as the infamous performance record of the DRS, has Brazil accepted the jurisdiction of the WTO, firstly on the aeronautical panel and now on the patents matter? Incompetence, perhaps? The future will tell.
Lawyer admitted in Brazil, England and Wales and Portugal. GATT and WTO panelist. Brazilian government ad-hoc representative for the Uruguay Round of the GATT. Post-graduation professor of the law of international trade.