A/HRC/11/12
page 20
61. The experiences of South Africa, Thailand, and India provide examples of difficulties
countries have had to overcome to implement TRIPS flexibilities. Although they were successful
in their attempts, there is fear that pressure from developed countries and pharmaceutical
companies will thwart future actions.68
62. Furthermore, different aspects of the capacity of governments of developing countries and
LDCs also contribute to variations in the use of TRIPS flexibilities. This includes the degree of
technical expertise, of technological capacity and of engagement amongst national law and
policymakers and the public in the implementation of TRIPS flexibilities.
63. Many developing countries and LDCs inherited IP laws from former colonizers. As a
result, when TRIPS came into force, many countries did not necessarily have the technical
expertise to effectively implement the agreement or take advantage of the flexibilities. In some
cases, limited institutional capacity led to dependence on developed countries and independent
bodies for technical assistance in drafting laws.69 It should be noted that there have been
concerns regarding the qualitative nature of assistance that is typically provided in relation to
TRIPS70 and in some cases LDCs seeking external assistance have adopted TRIPS-plus
standards in their national laws.71
64. The capacity of countries is also influenced by the degree of participation by individuals,
communities and their representatives. Experiences from Brazil, Mexico, South Africa,
Argentina, India, and the Philippines indicate that public interest groups can help promote efforts
to pass laws that facilitate access to medicines.72 Furthermore, rights impact assessments can
help highlight the impact of TRIPS and TRIPS-plus standards on the right to health.73 Examples
68
Despite the 2001 Doha Declaration and other commitments, countries issuing compulsory
licences as part of national drug programmes aimed at providing universal access to HIV/AIDS
and other treatments continue to be placed on the United States Special 301 Watch List.
69
Integrating Intellectual Property Rights and Development Policy, Commission on Intellectual
Property Rights (CIPR), (London 2002), p. 138.
70
Ibid., see also United Nations Conference on Trade and Development (UNCTAD), The Least
Developed Countries Report, 2007.
71
For example, the Bangui Agreement contains TRIPS-plus standards. Furthermore, the
12 LDC members of the African Intellectual Property Organization (OAPI) brought most of their
IP laws in line with TRIPS in 2002.
72
See footnote 31 above, p. 208.
73
E/CN.4/2004/49/Add.1.
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