Scrooge’s gift from rich nations to Third World at WTO

Geneva, 22 Dec (Chakravarthi Raghavan) - The Third World nations, individually and collectively, got a scrooge’s gift at the World Trade Organization in the early hours of Saturday - before the WTO closed activities for the year-end Xmas and New Year holidays.

The WTO failed to meet deadlines and deliver on the three items of priority interest to the developing world: on TRIPS and Public Health, on Special and Differential Treatment issues (for effective and operational solutions to the S&D promises in various Uruguay Round Agreements), and on implementation issues.

The TRIPS Council chair is expected to resume his efforts in mid-January, and the General Council is due to meet mid-February to consider the situation. The CTD Special Session chair is also to make another effort, now working to an extended 2 month deadline.

On TRIPS and Public Health, there were efforts to suggest that the solution would need to be found to deal with the deadlock on scope of diseases, but that other parts of the text would remain frozen. Korea made such a suggestion in the Green Room, but was promptly rebuffed, with Brazil making clear that they could not accept any modification of scope, but that if any attempt is made to reopen, they would come back with proposals on the other parts.

Both at the General Council and afterwards, a number of delegations did not agree that the rest of the text would be frozen, and that in renewed consultations in the new year, the focus will be on scope of the diseases in the chair’s draft decision text. They made clear that any attempt to further modify the text was not acceptable.

On TRIPS and Public Health, the US, single-handedly, blocked a consensus over a decision for implementing paragraph 6 of the Doha Ministerial mandate on TRIPS and Public Health - for an ‘expeditious solution’ before end-December to enable those with no or insufficient manufacturing capacity in the pharmaceutical sector to make effective use of compulsory licensing to provide essential drugs to their sick

This was bad enough.

But the very idea of some 10-15 ambassadors, chaired by Dr. Supachai (an eminent economist, but a doctorate in economics) arguing among themselves from which disease Africans or any one else should be ‘saved’ by providing affordable medicines, and from which diseases they should be allowed to suffer or die, is an obscenity and, if successful, will be viewed by history as a crime against humanity.

Astonishingly, though not for insiders, during all the informal consultations, the representative of the World Health Organization (an ad hoc observer) was not allowed in or asked about what the view of the WHO was. He could attend only the formal TRIPS Council meeting.

Whether the WHO D.G. Mrs. Gro Harlem Brundtland had intervened is not clear, but certainly she has not said anything in public. Nor has the UN Secretary-General Mr. Kofi Annan, though there were (unconfirmed) reports among developing country diplomats that he had called the White House to try to persuade President George W.Bush, but was told that instead he should call the Africans and developing countries to agree to the US proposals!

At the final meeting of the General Council a little after midnight of Friday-Saturday, the representative of the Holy See (an observer) asked the members to ponder over the moral implications, and cited the words of Pope John Paul II: “When you promise something to the poor people respecting that promise is a moral imperative.”

From Thursday afternoon, until the final meeting of the TRIPS Council at 2300 hours (2100 UIT) of Friday, the WTO members, and the developing nations among them, were being summoned repeatedly to meetings of the TRIPS Council only to be told the meeting was being recessed. During this period, the WTO Director-General, Dr. Supachai Panitchpakdi, who had got into the act on Thursday, was calling in a few ambassadors together in a ‘green room’ process.  His chef de cabinet had just some days ago assured the NGOs that there were no green rooms, and criticised them for ‘demonising’ the term.

In the green rooms called by Supachai, the few developing nations called in were being pressured to agree to a virtual rewrite of the Doha Ministerial mandate in order to ‘give comfort and accommodate’ the United States and the PhRMA. They were asked to agree to a restrictive meaning to the scope of public health problems and diseases enabling countries to act against patent monopolies and rules of the TRIPS, and about whose full flexibility available to Members to deal with public health problems, the Doha Ministerial meeting had reaffirmed in paragraphs one and four of the Doha Declaration on TRIPS and Public Health.

Korea, which till a few days ago, was refusing to opt itself out as an eligible importing country (as demanded by the EC, US, Japan etc) arguing that it was a ‘developing country’, at the green room joined in asking the developing nations present to accommodate the US. Apparently, said some developing country diplomats, pressure on Korea to opt itself out had eased, and in return Korea joined the US and others to pressure the Indias, Brazils, and the Africans!

But even this green process soon became a charade.

The repeated ‘green room’ meetings were held contrary to the normal practice, and only a few (and not all those who had participated actively and expressed some views on the Chairman’s texts at the TRIPS Council meetings) were invited; they were summoned and recessed ostensibly to enable the US delegation to get flexible instruction from Washington.

In retrospect to the ambassadors, but something evident to the media persons waiting around, it became evident that it was clearly a part of the Washington process to ensure that the outcome and the US isolation on an issue where normal people could understand clearly the moral issues, would miss media deadlines for Saturday’s papers (and would be out of date for Monday’s); it showed the validity of the complaints and charges of civil society and public in developing countries about how manipulative and non-transparent the WTO is in furthering the interests of major corporations, and thus unjust and inequitable.

The lack of good faith of the US, in seeking repeatedly time to consult and get instructions from Washington, became palpably clear at the end.

For, at the meeting just before the 2300 hours gathering of the TRIPS Council, the US ambassador could only tell the ‘green room’ that she had been trying to get the White House to agree to ‘flexibility’ over a compromise that the developing nations in the green room had rejected summarily even 24 hours earlier.

Dr. Supachai (who earlier in the week had met with the PhRMA representative, Mr Bailey), in the first green room had suggested a footnote to qualify the references in the decision to para one of the Doha declaration: by mentioning - besides HIV/AIDS, TB and malaria - some 11 or 12 diseases most prevalent in Africa, but for which there are presently no cures. This was rejected by the developing nations.

The EC had then suggested at the Thursday night green room, summoned by Supachai, that the US make a statement of its understanding of the diseases to which the decision would apply - health problems arising from yellow fever, plague, cholera, meningococcal diseases, African trypanosomniasis, dengue, influence, HIV/AIDS, leishmaniasis, hepatitis, leptospirosis, pertussis, poliomyelitis, schistosomiasia, typhoid fever, typhus, measles, shigellosis, haemorrhagic fevers, and arboviruses and other epidemics of comparable gravity and scale. For some of these diseases, there are no patents and the others are now seen as incurable and for which there are no medicines that could be compulsorily licensed. The EC said the TRIPS Council chair could take note of the US understanding, and express the hope that the implementation of the decision would take place within the framework of this US statement!

The developing nations again rejected it, making clear that the US was welcome to make any statement of its understanding, but that they too would make statements of their understanding that the entire range of public health problems adverted to in paras one and four were covered.

And the US ambassador making attempts from Thursday night to persuade Washington to accept this EC idea, is one of those jokes that in this situation is not even laughable.

No ambassador or representative at the meeting would speak attributively or on record - so concerned are they over the power that the US may exercise, collaterally, in their capitals - but several confirmed this in private, non-attributive comments.

On Friday, as ambassadors of key countries were coming down from the ‘green room’ meetings, and walking across the road to the Kenya permanent mission opposite to hold their own consultations and returning, they were getting exasperated with the WTO head, and in non-attributable comments made this clear.

A few merely spoke of it as part of the ‘usual WTO tactics of wearing us down and test our nerves’; but a few others, from countries that had campaigned for Dr. Supachai, remarked in anger that within four months of his unmoaned departure from the job, Mike Moore (Supachai’s predecessor) was looking better in retrospect - something for Dr. Supachai to ponder over.

At a press briefing (along with TRIPS Council chair Amb. Eduardo Perez Motta of Mexico), after the end of the General Council, in the early hours of Saturday, Amb. Sergio Marchi of Canada (Chair of the General Council) acknowledged the failure and said there was no way to sugar coat this bitter pill, but hoped that early in the New Year when the TRIPS Council members get re-engaged, and by the meeting of the General Council in February, compromise solutions would be found.  Motta said, when they all came back after the holidays, they could start from where they had left off - in effect implying that talks would be on the scope issue.

However, several developing countries said later this was not acceptable.

Inside the General Council - after the US had declined consensus and following that Kenya for Africa, India, Brazil, China, Cuba and a few others had spoken clearly or had got their earlier remarks at the TRIPS Council to be also recorded as comments at the General Council - there was some effort towards the end to spread the blame for the failure at the doors of everyone. Switzerland, and then EU etc (as also Japan which had been siding with the US) suggested it was a collective failure. However, to his credit, the Canadian chair of the General Council, did not go along with this game. He noted that every member had a domestic political constituency or interest to cater to, but this had to be weighed at some point against the responsibilities of multilateralism.

In the TRIPS Council, Kenya on behalf of Africa group, noted their efforts to work to build a consensus to implement the mandate that those with no or insufficient manufacturing capacity should be able to make use of the compulsory licensing provisions.

Dismissing the various fears of abuse voiced, Kenya noted that any government issuing a compulsory licence would be acting in a responsible manner, and after negotiating with the relevant patent rights holder, and the need to maintain a conductive investment environment.

Though some countries had concerns over the safeguards to be put in place to prevent abuse, they agreed reluctantly to go along for the sake of a compromise, and explored further efforts in the green room consultations by the WTO head.  The US suggestions for a footnote to limit the application, would have the effect of redefining and limiting the scope of the Doha Declaration which had been a significant milestone and any attempts to roll it back would be of some concern.

In a final intervention at the General Council, Kenya reiterated that the “focus of the work” at the TRIPS Council was to find a solution for WTO members with insufficient or no manufacturing capacities in the pharmaceutical sector, and not the scope of diseases. The Africa group was ready to continue discussions on the problems identified in para 6, but is not convinced that ‘the scope of disease coverage’ should be part of the discussion. “We therefore hope when we resume our discussions, members will avoid focussing on the scope of diseases instead of capacity problems. The solution should not in any way be seen to replace or modify the Doha Declaration which reaffirmed the existing flexibilities in the TRIPS Agreement.”

In an intervention in the TRIPS Council, after Africa, India said it was time to calmly reflect how they had progressed so far on promises made at Doha. This was particularly relevant in the case of the TRIPS Declaration and more so on para 6, which dealt with the difficulties faced by members with insufficient or no manufacturing capacity in the pharmaceutical sector. The situation now before the WTO was not a surprise to those who had been participating or following the TRIPS Council discussions, said India.

“We sometimes wondered,” said Amb. K.M.Chandrasekhar, “whether the Council was discussing how to facilitate access to drugs at affordable prices to poor people or how to restrict the scope and ambit of the intended solution. Commercial interests appeared to have become predominant.”

Underscoring the constructive engagement of developing countries and LDCs in the consultations and the spirit of compromise in which they had accepted the draft decision, he added: “the whole world is waiting expectantly for the outcome of the exercise in which we are presently engaged. It will be difficult to justify why this organization could not rise to the occasion and satisfactorily respond to the crises being faced in several parts of the world on account of public health problems of the kind described in the Doha Declaration. At stake are the hopes of millions of people to get access to medicines at affordable prices. Let us not fail them.”

Cuba said that the failure to act on the Doha declaration would have repercussions on the Doha work programme and agenda. Any attempt to rewrite the health declaration would mean that other parts of the Doha mandates, including on the Singapore issues, which they had accepted as a compromise, could be reopened by them.

The ASEAN, Argentina and others made clear that the present chair’s text was a compromise, and they all still had difficulties with some parts including the annex. Any attempt to reopen or modify this text wold unravel everything. All these countries reserved their rights in such a situation to reopen other parts of the texts. Earlier, Malaysia and a few others, who had been excluded from the ‘green room’, said in the TRIPS Council that they had problems with the chair’s draft text, and want changes to be made in it.

Switzerland at the General Council spoke of the failure as a collective responsibility, while Japan spoke of the need for a ‘balance’.

Interestingly, developing countries noted, Australia and New Zealand which normally vehemently support the US, remained silent. The EC intervened only at the end to suggest that the time should be made use of to promote consensus.

Chile, which often supports the US (because of agriculture) came out against the US, and repudiated that the failure was a collective responsibility. “This is a failure on the part of one or two members, and let us acknowledge it,” Chile said.

Several of the active civil society groups - OXFAM. Medicins sans Frontier, Health Action International and Consumer Project Technology - all condemned the WTO’s failure to act, and suggested that when talks resume, it should focus on setting right the imbalances and inequities of the TRIPS agreement.

James Love of CPTech said the issue had become now one of the WTO and its transparency and democracy, among others. The idea that trade diplomats should be able to sit and decide from which diseases, Africans or any others should be saved by access to cheap medicines and for which others they could be allowed to suffer and die was inacceptable.

The US effort, or that of others, that diseases of their people and children for which medicines were available, and patients enabled to get them through social medicine or health insurance etc, should not be available to poor Africans is an argument they can never win.

Civil society activists had been finding it difficult to explain to their public the intricacies of law and issues of a technical nature at the WTO and TRIPS.  But this is an argument that the public understand.

Deans of leading US medical colleges and institutions, doctors, and consumer groups have all now understood the realities of TRIPS, and this movement will gather strength.

A number of developing countries said that this was the first time after Seattle that the US had become clearly isolated, and any solution would require it to yield.

It showed that if there is unity of developing countries, and as now the Asian and African group of countries, Brazil and others held together - and several African capitals had withstood considerable pressures from the US and EC - the developing countries can draw benefits.

But whatever happens, the WTO and its leadership has collectively suffered a major setback. - SUNS5260

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