Retrogression on implementing Doha Public Health Declaration?

Geneva, 25 Nov (Chakravarthi Raghavan) - The talks at the WTO, in the framework of the TRIPS Council on implementing paragraph 6 of the Doha Declaration on Public Health appears to have gone into some retrogression after a Sunday meeting of a small group, and other bilateral and plurilateral consultations being held by the Chair, Amb.Eduardo Motta of Mexico.

As of Monday afternoon, it was a pretty confusing picture.

The informal TRIPS Council session after a brief meeting Monday was recessed, while Motta continued bilateral and other consultations. He has convened a meeting Monday evening of ambassadors to get their inputs.

A chairman’s informal text dated 24 November has been circulating among delegations and some NGOs, but its status is not at all clear - in the light of the consultations held by Motta Sunday with the smaller group and others Monday.

The comments from the US and other hardliners have put the discussions on a retrogression course, one of the participants said.

The chair’s 24 Nov. draft even has brought in the issue of a non-violation dispute within the ambit of a waiver, raising a completely a new sleuth of issues.

Under Article 64, which applied the GATT dispute settlement provisions to settling TRIPS disputes, in terms of Art.64.2 the non-violation disputes under the GATT - Article 1 (b) and 1 ( c) of Art. XXIII - were not allowed in TRIPS for five years from the entry of WTO .

The TRIPS Council was mandated under Article 64.3 to review this issue within the five years and submit recommendations to the Ministerial Conference.

This process of review and recommendations was successfully blocked by the US, which then blandly announced that since there had been no recommendations on the non-violation issue, the provisions also kicked in. This view was not acceptable to others and did not prevail.

The inclusion of the non-violation dispute in the decision on implementation of para 6 of the TRIPS and Public Health Declaration would imply (a) that the non-violation has kicked in by the mere act of blocking the review process at the TRIPS Council and (b) that such route to disputes is only being waived for the implementation of TRIPS and Public Health.

The implication of this on the wider issues of TRIPS and dispute settlement are such that it would be difficult to see how this will play out.

On other aspects of a waiver, a secretariat legal divisions opinion in the consultations supported the view that while conditions can be put on a waiver of obligations of those seeking it, no conditions can be put on third parties or on the rights of members flowing from agreements.

The conditions that some of the major industrialized countries, including the US and EC wanted to put in a waiver would have involved some TRIPS plus restrictions. And when it became clear this was not feasible under a waiver, the TRIPS plus conditions it was suggested should be incorporated in the amendments to Art. 31(f).

In such a scenario, the waiver plus amendment which had been backed by the African group, would have involved other developing countries accepting a TRIPS plus conditionality, and having the amendment adopted as part of the package.

This was not acceptable, and the US, Canada, Switzerland and Japan came back to their original idea of a waiver alone - and with some African delegations responding in a manner that it left the impression on others that one or two of them would just want a waiver.

However, the entire process would put so many difficulties in the way of exporters, that the importing countries may be able to issue a compulsory licence, with no supplier wanting to undertake any or all of the obligations.

Meanwhile, a number of developing countries including China and some other Asians, appear to have come out in favour of an Article 30 exception.

In the belief that a waiver plus an amendment to Article 31 (f) would enable them to get pharmaceutical industry established in Africa, on a regional market basis, the African group in June had more or less ceased to talk of an Art. 30 approach.

Also, Korea refused to rule itself out voluntarily as an eligible importing country under para 6.

And in some smaller discussions, the US even drew a red herring by seeking a footnote to exclude export of ‘bio-terrorism’, via compulsory licensing by an importing country on an exporting country! – SUNS5242

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