Implementing Doha health declaration or playing a con game?

Geneva, 27 Nov (Chakravarthi Raghavan) - After a detailed discussion Tuesday evening, at an informal meeting at the level of ambassadors on his ‘draft decision’ text of 24 November, the chairman of the TRIPS Council, Amb. Eduardo Perez Motta of Mexico, has been holding some bilateral and plurilateral consultations, before putting forward another draft.

Wednesday evening, WTO spokesman, Peter Ungphakorn said that the TRIPS Council meeting has been suspended till Friday afternoon, when it will meet depending on room availability.

Several key developing country delegations were pretty uncertain,Wednesday evening of what Motta might do and how it will play out. One or two delegations said there was now no consensus on any of the 11 paras of the Motta draft decision.

A number of civil society groups, who have been meeting delegations and monitoring the talks were expressing concern that under pressure from the United States, the Mexican envoy might just put forward a ‘take-it-or-leave-it’ text - with few changes from his 24 November text.

The 24 November text, is essentially one for a decision to issue a waiver, and further work to fashion an amendment or a legal mechanism to provide for a solution for enabling countries with no or inadequate manufacturing capacities to import cheap pharmaceutical products.

At the meeting Tuesday evening, Motta put forward two amendments or changes for his text.

One would insert to a footnote about eligible importing countries, about the OECD countries and a few others who would announce they would not make use of the provision.

A second change, in place of an existing para 11 in his draft. That para is a waiver of the requirements of Art. 31.f for compulsory licensing pending an amendment.

It provided that the waiver decision shall terminate on the date on which an amendment to the TRIPS Agreement replacing the decision takes effect in all Members, and that the TRIPS Council initiate work by a date to be specified on the preparation of an amendment for submission to the General Council for adoption by another specified date.

The new draft for the para 11 read:”This Decision shall terminate on the date on which an amendment to the TRIPS Agreement replacing it takes effect in all Members, it being understood that, without prejudging the content of this amendment, the provisions of this Decision will be taken as a starting point for this work. The TRIPS Council shall initiate work by 1.1.2004 on the preparation of such an amendment, for submission to the Ministerial Conference with a view to its adoption by 20.6.2004, it being understood that this work will not be part of the negotiations referred to in paragraph 45 of the Ministerial Declaration (the para about the Doha negotiations being treated as a single undertaking).”

The discussions Tuesday evening, according to trade diplomats, showed some sharp differences and views and perhaps unexpectedly for some a range of countries who have so far not been vocal, particularly on the legal mechanisms for implementation.

In the discussions, a number of countries brought up that Motta’s 24 November draft of ‘pharmaceutical products’ had removed ‘vaccines’ as among those covered, and insisted that it should be put back. At an earlier discussion of his ‘elements’ paper, Japan had wanted it to be removed, and the 24 Nov draft suggested Motta had obliged.

On the issue of eligible importing countries, the new draft provided for a footnote to para 1 (b) - which sets out eligible importing countries as any LDC member, and any others notifying the TRIPS Council of its intention to use the system as an importer, it being understood that a Member may notify at any time that it will use the system in whole or in a limited way, for example only in th case of a national emergency or other circumstances of extreme urgency or in cases of public non-commercial use.

The proposed new footnote would say: “It is noted that developed country members not in transition have stated their intention not to use the system established under this Decision as importing country Members and that some other Members have stated their intention to use the system only in circumstances of extreme national emergency”.

The intention appears to be for these members (the US and EC want the ‘high-income’ developing countries individually to make such an announcement).

At the meeting, a number of participants wanted this list of countries not intending to use the system or only in cases of extreme national emergency to be made known. Others objected. There was also opposition to the phrase ‘developed countries not in transition’ -creating a new category of countries so far not recognized at the WTO.

The US also appears to have proposed an amendment to para 1.b to list the circumstances that would apply to eligible countries - i.e. to deal with HIV/AIDS, malaria, TB and other infectious diseases of similar gravity.

A many others opposed any such limitation, insisting that para one of the Doha declaration should be fully reflected.

On the future work for an amendment, the text calls for work to be initiated before 1.1.2004, and completed by 20.6.2004, and not to be part of the single undertaking - lest as many feared it would be made part of a bargain for concessions elsewhere, was also put into the chair’s new paragraph.

However, a large number of countries spoke up at the meeting and said that an authoritative interpretation of Article 30 of the TRIPS Agreement is still their preferred option - rather than the cumbersome approach of amendment of 31.f for compulsory licensing, and which would involve such issuance of licenses at both ends (importing and supplying countries).

The Philippines set the ball rolling on the Article 30 view. Others who took a similar position were China, India, Brazil, Indonesia, Argentina, Sri Lanka, Pakistan, Cuba, Thailand, Malaysia and Peru. Australia also came out in support, arguing that both the Art. 30 and 31.f amendment should be kept as among the options to be considered.

Indonesia in its intervention was also very critical of the ‘safeguards’ and ‘restrictions’ being sought to be put in, allegedly to prevent the leakage, and said this was even stronger than ones required to deal with narcotic drugs.

The African group did not oppose or rule out, as before, the Article 30 option, but said the group would reflect on the entire paper and come back with their position.

At earlier stages, since June, the African group seemed to part company with the larger coalition of Africa, India, Brazil and other developing countries that had taken a common position and negotiated the Public Health Declaration in the runup to and at Doha and immediately after Doha. After June, the Africa group intervened in various consultations to rule out Article 30 interpretation approach, and insisted on a waiver plus amendment of Art.31.f.

It was never clear why they took this position, though there had been suggestions in the corridors that this was because of the perception that if there was only an Art. 31.f amendment, Africa will get investments to set up generic pharmaceutical industry on a regional basis. A similar view was also propagated among a number of other developing countries, that Art.30 approach will benefit only Brazil, China and India, while an amendment of Art.31.f will lead to establishment of generic industries in other countries.

In reality, closing the simpler Article 30 approach, and holding out only a waiver with or without Art.31.f would have enabled the US, Japan, Switzerland and the EC to proclaim to their domestic audiences about how they are helping Africans to combat disease by import cheap drugs, but piling so many restrictions on possible suppliers that in practice no generic supplies at cheap prices would be available.

A number of civil society groups who have seen through the game of the majors, have in fact been denouncing the way things are being played out, and appealing to developing countries not to accept such an offer or accord that would be empty of content.

Over the last 48 hours or so, several of the African countries have been complaining that the majors have been splitting and dividing the group, and that the way things are going they would get nothing out of this exercise. Some have been suggesting in the corridors that the African group should in fact walk out of the talks. But it was difficult to assess whether it was just loose talk of a few, or a growing perception within the group.

If the African group decides to reject the draft, there is little doubt that they will get full support from other developing countries - forcing the US and others to give up their tactics, and implement Doha in good faith. – SUNS5244

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