Joint submission by the Treatment Action Campaign (TAC), SECTION27, Doctors Without Borders/Médecins Sans Frontières (MSF), and the Stop Stock Outs Project (SSP) on the out-of-cycle review on South Africa’s eligibility for benefits under the African Growth and Opportunity Act (AGOA)

12 August 2015

The Treatment Action Campaign (TAC) is a civil society organization based in South Africa that advocates for the rights and interests of people living with and affected by HIV and TB. SECTION27 is a public interest law center based in South Africa. Doctors Without Borders/Médecins Sans Frontières (MSF) is an international medical humanitarian organization that has programs based in South Africa and sub-Saharan Africa that primarily provide HIV and tuberculosis (TB) treatment to vulnerable populations.

The Stop Stock Outs Project (SSP) is a civil society coalition that seeks to ensure that all people have access to the medicines they require and to which they have a right by monitoring and communicating about shortages and stock outs of medication, and ensuring that transparency and accountability exists along the supply chain in public health facilities across South Africa.

TAC and MSF jointly formed the Fix the Patent Laws campaign in 2011to support South Africa in adopting critical flexibilities to protect health – allowed under the World Trade Organization (WTO) Agreement on Trade-Related Aspects of Intellectual Property Rights (“the TRIPS Agreement”) and other international laws – into its national legislation. Fix the Patent Laws has since expanded to include 13 other health organizations, including SECTION27 and SSP, which support the needs of people in South Africa with regard to cancer, diabetes, epilepsy, mental health conditions, other non-communicable diseases, and sexual and reproductive health.

We welcome the opportunity to provide comments to the AGOA Implementation Subcommittee (“the Subcommittee”) of the Trade Policy Staff Committee, chaired by the Office of the United States Trade Representative (USTR), on the out-of-cycle review of South Africa’s eligibility for ongoing inclusion in the African Growth and Opportunity Act (AGOA), as required by the Trade Preferences Extension Act of 2015 (TPEA).

This submission aims to highlight the negative public health effect for people in South Africa if the AGOA out-of-cycle review of eligibility is used to pressure South Africa not to pursue pro-public health reforms of its national intellectual property (IP) legislation or to impose extraordinary IP standards beyond South Africa’s obligations under international laws.

Both the United States and South Africa’s governments agreed to the Doha Declaration on the TRIPS Agreement and Public Health (“the Doha Declaration”) as Members of the WTO, which affirms countries rights and obligations to adopt public health safeguards in implementation of TRIPS IP obligations. Commitments to supporting the protection of public health in the implementation of IP international obligations were also reiterated by both the United States and South African governments in the 2008 World Health Organization Resolution WHA 61.21 that adopted a Global Strategy and Plan of Action on Public Health, Innovation and Intellectual Property. Furthermore, the United States unilaterally committed to protect access to medicines and public health in its trade relations with sub-Saharan African countries when it adopted the United States Executive Order 13155 in May 2000.

An excerpt of the WTO Declaration on the TRIPS Agreement and Public Health (“the Doha Declaration”), November 20, 2001:

“We agree that the TRIPS Agreement does not and should not prevent members from taking measures to protect public health. Accordingly, while reiterating our commitment to the TRIPS Agreement, we affirm that the Agreement can and should be interpreted and implemented in a manner supportive of WTO members’ right to protect public health and, in particular, to promote access to medicines for all. In this connection, we reaffirm the right of WTO members to use, to the full, the provisions in the TRIPS Agreement, which provide flexibility for this purpose.”

An excerpt of the United States Executive Order 13155, May 12, 2000:

“(a) In administering sections 301-310 of the Trade Act of 1974, the United States shall not seek, through negotiation or otherwise, the revocation or revision of any intellectual property law or policy of a beneficiary sub-Saharan African country, as determined by the President, that regulates HIV/AIDS pharmaceuticals or medical technologies if the law or policy of the country:

(1) promotes access to HIV/AIDS pharmaceuticals or medical technologies for affected populations in that country; and

(2) provides adequate and effective intellectual property protection consistent with the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) referred to in section 101(d)(15) of the Uruguay Round Agreements Act (19 U.S.C. 3511(d)(15)).

(b) The United States shall encourage all beneficiary sub-Saharan African countries to implement policies designed to address the underlying causes of the HIV/AIDS crisis by, among other things, making efforts to encourage practices that will prevent further transmission and infection and to stimulate development of the infrastructure necessary to deliver adequate health services, and by encouraging policies that provide an incentive for public and private research on, and development of vaccines and other medical innovations that will combat the HIV/AIDS epidemic in Africa.”

This submission also responds to a submission made by the American Chamber of Commerce in South Africa (AmCham) on behalf of American companies operating in South Africa, which argues that South Africa’s eligibility to participate in AGOA must be contingent on South Africa abandoning certain IP law reforms. We note with deep concern that AmCham’s submission requests that the U.S. Government use this out-of-cycle AGOA eligibility review process as leverage to discourage South Africa from pursuing TRIPS-compliant policy reforms that are in line with the country’s national public health objectives and constitutional obligations.

Any attempt by the U.S. Government to impede South Africa’s progress towards adopting flexibilities to protect public health allowed under the TRIPS Agreement would threaten access to medicines and promotion of public health and undermine United States public health commitments to South Africa.

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