Access to medicines, BRICS alliances, and collective action.

INTRODUCTION On December 6, 2005, shortly before the World Trade Organization ("WTO") Ministerial Conference in Hong Kong, WTO member states agreed to accept a protocol of amendment1 to the Agreement on Trade- Related Aspects of Intellectual Property Rights ("TRIPs Agreement"). 2 This amendment sought to provide a permanent solution to implement paragraph 6 of the Doha Declaration on the TRIPS Agreement and Public Health ("Doha Declaration").3 If ratified, the new article 3lbis of the TRIPs Agreement will allow countries with insufficient or no manufacturing capacity to import generic versions of on-patent pharmaceuticals.4 To facilitate the supply of essential medicines to countries with insufficient or no manufacturing capacity, article 3lbis(3) creates a special arrangement not only for the affected countries, but also for those belonging to a regional trade agreement.5 Such an arrangement allows less developed countries6 to aggregate their markets to generate the purchasing power needed to make the development of an indigenous pharmaceutical industry attractive.7 It also paves the way for the development of regional supply centers, 8 procurement systems, 9 and patent pools and institutions, while facilitating technical cooperation within the region.10 Unfortunately, because article 31bis specifically requires that least developed countries make up at least half of the membership of any beneficiary regional trade agreement, the provision would benefit only a limited number of less developed countries, predominantly those in Africa.11 Even worse, the interpretation of the provision remains contested within the WTO. While the European Communities "insisted that the [provision] should be limited to what is effectively sub-Saharan Africa," less developed countries in Asia, the Caribbean, and South America embrace a much broader interpretation of article 3lbis(3).12 In light of the limited benefits of the proposed amendment to the TRIPs Agreement, this Article explores how greater collaboration among the BRICS countries (Brazil, Russia, India, China, and South Africa) and between these countries and other less developed countries can promote access to essential medicines in the less developed world. Part I introduces the five BRICS countries by offering a brief discussion of each country in the area of international intellectual property protection. This Part explains why South Africa is included along with the four largest emerging economies. Part II then advances the hypothesis that, if the BRICS countries are willing to join together to form a coalition, it is very likely that the resulting coalition will precipitate a negotiation deadlock similar to the historic stalemate between developed and less developed countries before the adoption of the TRIPs Agreement. This Part explains why these five countries collectively would possess such immense power to stop the push by the European Communities and the United States to ratchet up global intellectual property standards while threatening to grind the intellectual property harmonization process to a halt. Part III questions whether these five countries can build a sustained coalition in light of their very different historical backgrounds; the divergent levels of political, social, economic, and cultural developments; and the welldocumented historical failures for less developed countries to build or maintain effective coalitions. Taking these challenges and potential hurdles into account, this Part contends that it may be more realistic for less developed countries to enter into alliances with one or more of the BRICS countries. Although these partial alliances will not have the same bargaining leverage as a complete BRICS coalition, this Part notes that the resulting alliances will still be quite effective in advancing the interests of less developed countries. Part IV highlights the role that the BRICS coalition or partial BRICS alliances can play in the international intellectual property regime. …