Open letter to the trade and foreign ministers of EFTA's states regarding the negotiations with Southern African Customs Union (SACU)

To:

• Børge Brende, Minister of Trade and Industry (Norway)
• Joseph Deiss, Federal Councillor, Head of the Federal Department of Economic Affairs (Switzerland)
• David Oddsson, Minister for Foreign Affairs (Iceland)
• Ernst Walch, inister for Foreign Affairs (Fürstentum Liechtenstein)

CC: relevant ministers in South Africa, Lesotho, Namibia, Botswana, Swaziland

November 4, 2004

Dear ministers,

The EFTA states are currently negotiating a bilateral free trade agreement with the states of the Southern African Customs Union (SACU), Botswana, Lesotho, Namibia, South Africa and Swaziland. According to declarations by the relevant Swiss ministry, the EFTA states intend to include in that agreement provisions on intellectual property that are going beyond the WTO TRIPs agreement (thereafter "TRIPs-plus" provisions). The undersigned organizations want to express their strong opposition to such inclusion. We are of the same opinion as the British Commission on Intellectual Property Rights that „developed countries should review their policies in regional/bilateral commercial diplomacy with developing countries so as to ensure that they do not impose on developing countries standards or timetables beyond TRIPS.” The British government endorsed that CIPR's recommendation. We are in particular strongly opposed to TRIPs-plus provisions for agriculture and medicines. If adopted, those provisions would have lasting negative consequences on the public health and on the food security in SACU countries. Our concerns are based on the presence of such provisions in the free trade agreements that were concluded earlier with other developing countries (e.g. EFTA's free trade agreements with Chile from 26 June, 2003, and with Lebanon from 24 June, 2004).

EFTA's TRIPS-plus provisions on medicines

We fear that EFTA states are pressuring SACU states to introduce in their legislation a five to ten years exclusivity on data for registration of brand-name medicines. Such a protection would apply even when a medicine is not patented or is subject to a compulsory licence. During the period of protection, regulatory authorities will not be able to automatically rely on data of clinical tests of original producers when approving the marketing of generic medicines. The authorization of the original producers will always be necessary, even in emergency situations.

We are also concerned that EFTA countries are urging SACU states to grant 5-year patent extensions in order to compensate "unreasonable" delays in the procedure of market approval. Such a provision is subject to many interpretations and will delay introduction of generic medicines up to five years after the normal expiration of a patent.

Those provisions are beyond the TRIPs obligations. They strengthen the monopolistic rights of pharmaceutical corporations at the expense of the patients. Their effect is to block and delay generic competition. However, the case of HIV/AIDS medicines has proved that generic competition is the most efficient tool to lower the price of medicines and therefore to improve access to medicines. This is particularly important in developing countries where the majority of the population lives in poverty and has to pay its medicines out of its own pocket.

Such provisions are totally inappropriate for the SACU countries that have the highest HIV/AIDS prevalence rate among their adult population in the world : 21,1% in South Africa, 21,3% in Namibia, 28,9% in Lesotho, 37,3% in Botswana, 38,8% in Swaziland. In order to treat their population, those countries need to preserve their ability to use generic competition in order to obtain essential and life-saving medicines at affordable prices. They don't need to strengthen the monopolistic rights of giant pharmaceutical corporations.

By seeking TRIPS-plus provisions, the EFTA states are denying the letter and the spirit of the Doha Declaration on the TRIPS agreement and public health they adopted in November 2001 . It states that every country has the "right to protect public health and, in particular, to promote access to medicines for all."

EFTA's TRIPS-plus provisions in agriculture

We would strongly disagree if EFTA states are asking SACU states to become members to the UPOV convention. Such requirement restricts the flexibility provided by the TRIPs agreement that allows countries to develop their own “effective sui generis system” for protecting plant varieties. The African countries made a first step towards developing their own system by drafting an African Model law.

Moreover, today countries can only become a contracting party to the 1991 version of UPOV, which is much stricter than the 1978 version, the one still applicable to older signatories, like Switzerland or Norway. Under UPOV 1991 farmers are no longer allowed to exchange seeds. If there is a drought for example and one farmer's harvest is destroyed, his neighbour may not give him any seed if this seed is protected under the plant protection scheme without the permission of the holder of the variety. In addition, under UPOV 1991 the use of farm-saved seeds is prohibited or at least severely restricted. For the moment South Africa is the only SACU state that is UPOV Member (UPOV 1978).

We are concerned that EFTA states are asking SACU states to grant patents on “biotechnological inventions”. This provision goes beyond the TRIPS obligations. Because “biotechnological inventions” can be plants or animals, this reference provides an opening for patents on certain plants and animals (without spelling this out clearly). This in a clear contradiction to the joint communication from the African Group at the TRIPS Council stating: “Patents on life forms are unethical and the TRIPS Agreement should prohibit them.”. Asking SACU states to become members to the 1997 Budapest Treaty would be another way to facilitate the patenting of life forms and is also “TRIPS-plus”.

Those provisions are problematic in SACU states because the enforcement of intellectual property rights in agriculture restricts the farmers’ rights, especially the right to use farm-saved seeds. Up to now informal supply systems, where farm-saved seeds are estimated to represent about 90% of planted seeds, are dominant in SACU states. Stronger IPRs would destroy those systems and the agricultural biodiversity.

No intellectual property provisions in the EFTA-SACU free trade agreement

Developing countries like the SACU states face huge challenges to achieve food security and optimal health care for their population. Therefore they need to keep sufficient freedom to adjust their intellectual property system to their needs. Intellectual property provisions in bilateral free trade agreements, however, reduce such freedom and have direct consequences on the right to food and the right to health of their people.

In April 2001, under pressure of world public opinion, 39 pharmaceutical corporations had to withdraw their 1998 complaint against the South African government. Their reluctance to withdraw earlier did lasting damage to their reputation. By seeking, through TRIPs-plus provisions in the free trade agreement with SACU states, advantages for your industries irrespective of the public health and food needs of your trading partners, you are also putting the image and reputation of Switzerland, Norway, Iceland and Liechtenstein at stakes.

As signatories of this letter, we require that there be no intellectual property provisions in the free trade agreement between the EFTA states and the SACU states.

Sincerely,

Signatories:

South Africa:
Njogu Morgan , Treatment Action Campaign (TAC),
Elfrieda Pschorn-Strauss , Biowatch

Norway:
Svanhild-Isabelle Batta Bjørnstad, Genesis
Arvid Solheim, the Development Fund

Liechtenstein:
Regula Mosberger, Liechtenstein Association for Environmental Protection (LGU)
Gerda Bicker, Welt und Heimat
Robert Allgäuer, Aktion: Wir teilen. Das alternative Fastenopfer

Switzerland:
François Meienberg & Julien Reinhard, Berne Declaration
Christian Captier, MSF-Switzerland

Namibia:
Delme Cupido, Aids Law Unit
Emma Tuahepa, Lironga Eparu

International NGOs:
Céline Charveriat, Oxfam International
Renée Vellvé, GRAIN
Collette Campher, AIDS and Rights Alliance for Southern Africa (ARASA)

Additional supporting organizations:

South Africa:
Southern African Catholic Bishops' Conference, Environmental Monitoring Group, SEATINI South Africa Chapter

Namibia:
Namibia Network of Aids Service Organisations (NANASO)

Norway: Forum for utvikling og miljø/ Forum for Development and Environment; Naturvernforbundet/ Friends of the Earth – Norway; Natur og Ungdom/ Friends of the Earth Youth – Norway; Changemaker; Kirkens Nødhjelp/ Norwegian Church Aid; Norges Bondelag/ Norwegian Farmers’ Union; Attac Norway

Switzerland: Swiss Aids Federation, Swiss Coalition of Development Organizations, Greenpeace Switzerland, Swiss Interchurch Aid, Bread For All, Fondation Terre des Hommes, Fédération Genevoise de Coopération, Fédération Romande des Consommateurs, Comedia, Swissaid, Medicus Mundi Switzerland, SolidarMed, Antenne Sida du Valais romand, Association Romande des Magasins du Monde (ASRO), Attac Suisse, Basler Appell gegen Gentechnologie, Bethlehem Mission Immensee, Blauen-Institut, Coalition "A Gauche toute!", Co-operaid, DM-échange et mission, Enseignants Sans Frontières, Groupe sida Genève, HorYzon - la dimension internationale des Unions Chrétiennes Suisses, Parti Les communistes, Parti socialiste genevois, PLANeS, Restaure la Terre, SID'Action, SolidaritéS, Syndicat des services publics - section Genève, Vivere

France: Act Up-Paris