SOUTHERN AFRICAN COUNTRIES REJECT 'TRIPS-PLUS' DEMANDS IN FTA NEGOTIATION

Southern African countries have rejected the European Free Trade Association's (EFTA; comprised of Switzerland, Norway, Iceland, and Liechtenstein) proposal on intellectual property rights (IPRs) in the free-trade agreement (FTA) negotiations between the two trading blocs.

In an 18 February letter to the Treatment Action Campaign, a South Africa-based grassroots public health group, South African Trade Minister Mandisi Mpahlwa said that the Southern African Customs Union (SACU; South Africa, Botswana, Namibia, Lesotho, and Swaziland) had refused to accept EFTA's proposed IPR provisions that went beyond the requirements of the WTO Agreement on Trade-related Intellectual Property Rights (TRIPS).

Civil society organisations raised alarm about EFTA's demands

Mpahlwa's statement responded to a 4 November 2004 open letter from 57 civil society organisations to EFTA and SACU trade ministers, in which they criticised the European bloc's proposed 'TRIPS-plus' provisions on public health and agriculture. The organisations contended that EFTA's pressure on SACU states to introduce a five- to ten-year data protection period for clinical test data, as well as a provision to potentially allow five-year patent extensions to brand-name drugs, would "block and delay generic competition," thus hindering access to medicine. They also criticised EFTA for asking SACU states to grant patents to "biotechnological inventions" and accede to the 1991 version of the UPOV convention (International Convention for the Protection of New Varieties of Plants), arguing that these measures would threaten the rights of Southern African farmers to use farm-saved seeds, thus threatening both biodiversity and food security.

Mpahlwa told the Treatment Action Campaign, one of the open letter's signatories, that "South Africa's approach to trade negotiations is to always seek the best possible benefits for the country and SACU in all areas under negotiation... As SACU and EFTA have not been able to arrive at mutually beneficial outcomes in our IPR discussions, we have agreed to suspend negotiating any substantive commitments in this area... As a result, the final agreement will contain none of the IPR obligations referred to in your letter."

"TRIPS should be a ceiling, not a floor"

Jonathan Berger, a lawyer at the AIDS Law Project based at the law school of the University of the Witwatersrand in Johannesburg, welcomed the development, saying that "it's great, and it's certainly what we hope would be the case in the US-SACU negotiations. We believe that TRIPS should be a ceiling, not a floor."

The US-SACU FTA negotiations have been stalled since late September 2004 over differences on IPRs and investment rules. South African officials have said that high-level US IPR standards "may not be appropriate" for developing countries.

Swiss non-governmental organisation Berne Declaration released a report in November 2004 criticising EFTA for including TRIPS-plus provisions in its FTAs with countries such as Chile, Jordan, and Morocco. It is not yet clear whether EFTA will conclude an agreement with SACU that includes no substantive provisions on IPRs.

The open letter to EFTA and SACU ministers is available at http://www.evb.ch/cm_data/Open_letter_EFTA.pdf

The Berne Declaration report on EFTA FTAs is available at http://www.evb.ch/cm_data/EFTA_Trips-plus_2.pdf

ICTSD reporting; "Southern African countries have taken a firm stand against EFTA demands On Intellectual Property Rights in Free Trade Agreement," BERNE DECLARATION (press release), 4 March 2005; "SACU countries reject trade agreement," SUNDAY TIMES (online, South Africa), 8 March 2005; "US-SACU trade talks grind to a halt," BUSINESS DAY, 22 September 2004.