Talks on TRIPS and Public Health break down

by Chakravarthi Raghavan

Geneva, 25 Oct 2001 - - The intense level of consultations and negotiations on a Ministerial Declaration at Doha on the issue of TRIPS and Public Health, first at ‘technical level’ led by the TRIPS Council Chair, and then at the General Council level by Stuart Harbinson, have collapsed, creating a major new South-North divide.

There are irreconcilable differences between developing countries on the one side, and a small group of industrialized countries, in particular the US and Switzerland, with one or two like Australia speaking up with them claiming they were being ‘squeezed’ between the US and the developing countries, trade diplomats said Thursday.

In the talks extending for over 5-6 months at various levels and in terms of drafting a declaration over the last 2 months, the developing countries who are fairly united on this, have made clear that they are not willing to accept any declaration that is so worded as to amount to reducing their rights under the TRIPS agreement, in terms of exhaustion of rights or compulsory licensing or right to take measures on grounds of public health, and/or reduce the flexibilities available; they were not just not ready to accept such a declaration.

Nor were they willing to accept any declaration whose substantive effect has ‘no value added’.

While the major industrialized countries have been under great pressure, from their civil society and from the developing countries who face a health crisis, the civil society of the North, in particular some of the NGOs who were demonstrating and lobbying strongly against their governments and corporations, have been silenced after the 11 September events, and the ‘war on terrorism’.

As a result, perhaps, at every meeting where the developing country negotiators tried to be flexible to achieve some results, the major industrialized nations came up with harder positions and language.

While the US and Switzerland have been leading this pack, and Australia and Canada from time to time have been speaking up in support, claiming that the TRIPS agreement already provided flexibilities, except for Norway, most of the other industrial countries even by remaining silent have been helping the hard-liners.

Before the talks collapsed Wednesday, some of the key negotiators including Brazil, India, Zimbabwe for the African group said that if a declaration has to have language, as proposed by the US and others (and often floated or sounded for compromise by the secretariat), to the effect that the Declaration would be ‘without prejudice to the rights’ or ‘preserve the rights’ or ‘not adding to or diminishing the rights’ under the TRIPS agreement, “it makes a nonsense of the declaration.”

Though their ‘hard positions’ are being presented in terms of ‘domestic political sensitivities’ - whatever this might mean - in fact the attempt would appear to be get for their pharmaceutical companies and others what could not be obtained in the TRIPS agreement itself during the negotiations.

‘Soft language’ was adopted then in the hope that this would help reach an agreement, leaving the language vague, with the understanding on all sides that later perhaps through the interpretative processes, and experience of working, the rules could be authoritatively interpreted or changed.

However, the way the WTO agreements have been bundled, and the TRIPS agreement is being interpreted, guided at the panel stage by the WTO secretariat and its hard, pro-pharmaceutical lobby secretariat, and by the appellate body, has already created political and other problems for several developing countries.

Only the AIDS disease that has become a major health crisis for the North and the South, and against which there is a powerful US lobby attacking the greed of the pharmaceutical corporations, forced the US and others to retreat first in South Africa and then in Brazil.

If these problems had arisen, after 11 September, it is doubtful whether the public health and civil society lobbies would have been effective.

Since then, the developing countries have gone as far as they could by being willing to take note of the commitments of members to the TRIPS agreement in the preamble, but are not ready for any thing more.

However, the US and Switzerland, with Australia piping up in small consultations on their behalf, has been insisting that any language used in the operative parts whether on parallel imports or on compulsory licensing etc should mention or refer to all other provisions of the TRIPS and declare that the operative paragraph would be without prejudice to these rights and obligations.

There have been two options discussed on TRIPS and Public Health:

The first, and preferred option of developing countries, has been to say that “Nothing in the TRIPS Agreement shall prevent WTO members to take measures to protect public health.”

A secretariat compromise formulation has been “TRIPS does not prevent WTO members from taking measures to protect public health.”

The two are not the same, and will have different implications, particularly when panels begin to look into disputes raised.

A clear operative, declaration of the Ministers sought to be incorporated in the declaration has been:

Ministers decide that “Accordingly, TRIPS shall be interpreted and implemented in a manner supportive of WTO members’ right to protect Public Health and secure affordable access to medicines for all.”

However, the US, Switzerland and Australia have not agreed to such a formulation and want one:

“We reaffirm, as an integral part of our commitment to the TRIPS Agreement as a whole, that nothing in the TRIPS Agreement prevents WTO members from using the flexibility available to implement measures to address public health crisis.”

This would really mean that the attempt to use the flexibility, to issue compulsory licenses on which there are now no conditions excepting some procedural requirements, or allow parallel imports, would be prevented by citing other articles of TRIPS - an interpretation that originally figured in the socalled background, and history of TRIPS that was posted on the WTO website by the secretariat, and later (when attention was drawn to this in the runup to and later of the Hosbjor meeting) was modified on the WTO website - with not very convincing explanations for either.

In the consultations/negotiating process, the key developing countries negotiating a compromise (India, Brazil, Zimbabwe for Africa) have asked the blunt question whether Art. 31 of TRIPS in any way sets the conditions to be satisfied before compulsory licences are issued, beyond the procedural requirements set there. Under what conditions, governments could issue a compulsory licensing has not been spelt out by the agreement, and under any normal theory of interpretation of international law (where it is accepted that sovereign countries cede jurisdiction and their rights only be explicit agreements), the right of countries and their governments to make the judgement is unequivocal, subject only to the procedural requirement - either an attempt to reach a private agreement with the patent holder, or in conditions of ‘national emergency’ or on public health grounds (an over-riding exception, to any obligation.)

Nevertheless, this right is sought to be qualified, by implying that the government of a country is not the determinant for declaring a national emergency, but through a dispute process or otherwise could involve the WTO sitting in judgement.

In some technical level informal meetings to sound out, at one stage, one of the hardliners suggested that for the declaration of a ‘national emergency’ at least 10% of the population should be affected - which would mean say, less than a million affected in Switzerland, but at least 80-90 million dead in a country like India!

Another qualification was that the national health emergency must relate to HIV or pandemics, a favourite word used by the WHO too.

However, the dictionary meaning of pandemics is that the epidemic disease must be affecting more than one continent. For example, river blindness, a disease affecting a part of Africa, or sleeping sickness affecting another part of Afric is not a pandemic, and so no compulsory licenses can be issued to procure a medicine for public health!

It was only when the secretariat and the majors were confronted with this dictionary meaning that they retreated - but began searching for other words to qualify the rights of developing countries.

Developing country diplomats said that they had learnt a bitter lesson from the Uruguay Round and they were not willing to accept any more attempts to fool them by powerful lawyers of the US, EU and the secretariat.

More recently, the US has presented some formulations to suggest it was trying to meet the problems of the LDCs and non-LDC sub-Saharan Africa.

In the talks, it turned out that these great concessions by the US, and relayed as such by trade officials to the media, were nothing more than rights that these countries already have.

For example, the US has said it would include a provision that the ‘transition’ for the LDCs, now due to end in 2010, would be extended to 2015.

In fact, Art 66.1 of the TRIPS agreement already provides that any LDC can apply for extension of the transition period and the TRIPS Council “shall.... accord extension of this period.”

Another ‘concession’ by the US to sub-Saharan non-LDC Africa was for ‘due restraint’ in raising disputes, subject to the country concerned applying a ‘non-discriminatory IPR law”.

When asked in the consultations/negotiations to explain what could be a non-discriminatory application in this case, the US could not - showing that alleged gracious restraint in raising disputes would be no more than a catch-all under which any conduct of any government could be brought up to justify raising a dispute.

On Thursday, the secretariat and others were appearing to be attempting to suggest more compromises, aimed at getting the US and Swiss and others off-the-hook, in getting a declaration. – SUNS4996

The above article first appeared in the South-North Development Monitor (SUNS) of which Chakravarthi Raghavan is the Chief Editor.

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