Doha ministerial to be asked to address TRIPS and Health Care

by Chakravarthi Raghavan

Geneva, 2 May 2001 - - The 4th Ministerial meeting of the World Trade Organization, to be held this November at Doha (Qatar), is to be asked to address the issue of “TRIPS and Health Care”.

At a meeting, Monday,  of the informal group of developing countries at the WTO, where the ‘check-list’ of possible issues for discussion at Doha, sent out by the General Council Chair, Mr. Stuart Harbinson, was discussed, a large number of countries spoke in support of this.  At the meeting, India raised this question and the need for the Doha Ministerial meeting to address it.

The issue of the WTO’s Trade-Related Aspects of Intellectual Property Rights Agreement (TRIPS), Health and Affordable Medicines has been raised at the TRIPS Council, at its meeting on 4 April, by the Group of African countries and  received wide support and endorsement. The Council has set one day at its meetings in June to discuss the issue.

In their proposal, the African group of countries had said they wanted the special discussions to feed into the preparatory process for the Doha ministerial.

Since then, the GC chair, Mr. Harbinson, has sent out an ‘initial check-list of possible issues for discussion’ at Doha.The informal developing-country group, at its meeting on Monday, discussed the proposed check-list of issues.

India raised at the meeting, the TRIPS and Health Care issue, and suggested that the Doha ministerial meeting should address this. A large number of countries present supported this.

Separately, India also drew the attention of the members to the World Trade Organization posting on its ‘website’ last week some 84 documents relating to the Uruguay Round TRIPS negotiations, under the title of ‘Negotiating History’ <>.

Several of the delegations, later speaking informally and non-attributively, were ‘puzzled’ by the secretariat suddenly posting the documents on its website now, and even more, expressed their concern at these being listed under the title ‘Negotiating History’.

The term ‘Negotiating History’ has a particular legal connotation in terms of international treaty negotiations and is generally governed by the Vienna Law of Treaties and practices.

A negotiating history has to be prepared, and put before the plenipotentiaries who negotiate and conclude the negotiations (with an agreement, or sometimes failing to do so) and which has to be approved by them.

While the secretariat of the General Agreement on Tariffs and Trade prepared such a negotiating history and placed it before the Trade Negotiations Committee in 1979 (at the end of the Tokyo Round negotiations), as a report of the Director-General to that TNC, no such report or history was ever prepared and placed before the final meeting of the Uruguay Round's Trade Negotiations Committee at Marrakesh.

In fact, before Marrakesh, the secretariat toyed with the idea of drawing up a negotiating history, but ultimately decided against it since its versions could be challenged at Marrakesh - given the course of the entire negotiations - from September 1986 to March 1994. While there were a number of formal proposals, and formal meetings of the various negotiating groups and the TNC and its subordinate bodies, a considerable amount of the negotiations, more than in the past, was conducted in secret and informally, and among a small group of delegations, and with several informal ‘non-papers’ being put on the table in such talks. The outcome of such secretive, informal talks, and the GATT DG supplying ‘compromise’ text in crucial deadlocked areas, were presented to others on a take-it-or-leave-it basis,and they were forced to take it. To call this a negotiating history would be a travesty of the facts.

Trade officials, including those in the cabinet of the then Director-General Peter Sutherland, said at that time that given the problems that such a history would face, they would not present any official history, but that they were preparing internal notes, which would be in the secretariat files.

These were never made public, though from time to time, in key disputes, these notes and views of the secretariat on the course of negotiations, have been surfacing in the dispute settlement process, when the secretariat, in servicing the panel process, has placed them before panels in its notes to the panels.

This has been challenged several times, and this method of the secretariat influencing the panel process has led to an erosion in the credibility of the dispute process (both by panels and the Appellate Body) and in the public view of a lack of impartiality and a pro-corporate bias,  in general, and even more so in relation to the TRIPS agreement.

The documents relating to the TRIPS negotiations, as of the negotiations in all other areas of the Uruguay Round, were in fact, officially ‘derestricted’ at Marakesh on 30 March 1994.

That decision said that the TNC decided that ‘certain documents’ associated with the UR-MTNs shall be derestricted in accordance with the following procedure:

a)   the secretariat will prepare a list of UR documents proposed for derestriction, which will include Secretariat background notes prepared in connection with the negotiations, as well as document indexes, minutes of the negotiating groups and working papers that do not include details of individual country positions or proposals;

b)   this list will be circulated to all participants;

c)   documents on the list will be derestricted 60 days after its circulation, unless a participant has requested that a document remain restricted;

d)   the Secretariat will issue a list after the date fixed for derestriction specifying the documents derestricted and the documents remaining subject to restriction.

And almost as if by prior arrangement, a US publisher (who was presumed, by other country delegations, to have gotten access to the official texts via the US Trade Representative’s office), very quickly published, in two or three volumes, the documents (officially tabled) at the Uruguay Round.

The secretariat itself did not appear to have done anything further, and those wanting to do ‘research’ were always directed to the GATT/WTO library where the ‘derestricted’ documents were available. Government delegations themselves have been able to access all the documents - documents that the GATT Director-General Arthur Dunkel (in a moment of frustration and exasperation when he was unable to conclude the negotiations) once called 'the GATT cemetery of documents'.

There is no credible explanation as to why the secretariat has now posted them on its website or why only documents in TRIPS have been dealt with thus, and not those in respect of other agreements.

Delegations of developing countries, particularly those actively involved in these issues, have been considerably mystified by the way the TRIPS documents have now been put on the WTO website, under the title ‘Negotiating history’, with a note: “Official documents from the 1986-94 Uruguay Round trade talks, giving scholars a picture of how the TRIPS agreement came about..”

The website note adds: “Below you can download 84 derestricted documents, some of them reports of meetings, others material compiled by the GATT secretariat, including synoptic tables of proposals. Two documents in the package are the draft ‘Final Act’ of December 1990. A number of other documents remain restricted - three additional documents containing the derestriction decisions are included in the package.”

Some trade diplomats wondered whether the ‘posting’ of the documents now, and characterising it as a ‘negotiating history’ has something to do with some high-profile disputes involving TRIPS - the US dispute against Brazil, referred to a panel, though panellists are still to be named, and the consultations sought by the US with Argentina over its laws to give effect to TRIPS obligations.

Another line of speculation has been that the TRIPS division of the secretariat, which has the reputation among the membership, of being the most partisan, has been feeling the heat of public agitation on the TRIPS and health care and drugs issues. Its efforts, with that of the WHO (at the recent meetings at Hosbjor in Norway, in trying to steer the discussions towards ‘differential pricing’ and as a concomitant, segmentation of  markets and restrictions on ‘parallel’ imports), and the claims that the TRIPS agreement provides the necessary flexibility for developing countries, has not been very successful.

It was challenged at Hosbjor by some of the NGOs who were allowed to be present, and the entire TRIPS issue, and affordable medicines, has now come high up on the international public agenda, with not merely NGOs like Medicines Sans Frontier and Oxfam, but even health care providers in the US, who are challenging both the issue of costs of medicines and their affordability, as well as the view that the exclusive monopoly patent privileges are the only way to promote research and development.

The UN Human Rights Commission last month adopted a resolution, mooted first by Brazil and which then attracted wide co-sponsorship - with only the US abstaining - asking all States to “ensure that application of international agreements is supportive of public health policies which promote broad access to safe, effective and affordable preventive, curative or palliative pharmaceuticals and medical technologies.”

This debate has put the WTO and its TRIPS enthusiasts on the defensive vis-a-vis civil society and governments of the developing world - many of whom in fact negotiated under the coersion and threats of the US ‘Special 301’ trade sanctions, and countries being put on a ‘special watch list’, with a statement that the US would judge the issue on the basis of the stands taken by their negotiators in the course of negotiations.

The TRIPS and its costs have become one element behind the challenge to the WTO and its legitimacy.

In fact, TRIPS is now seen by some trade observers as a ‘cancer’ implanted into the trading system, producing negative effects.

Unless excised out of the system, it may metastasize the system itself. – SUNS4887

(For some recent reports on this issue, at the TRIPS Council, Hosbjor meeting, and the UN Human Rights Commission, see SUNS Nos 4870, 4871, 4873, 4876, 4880 and 4883)

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

© 2001, SUNS - All rights reserved. May not be reproduced, reprinted or posted to any system or service without specific permission from SUNS. This limitation includes incorporation into a database, distribution via Usenet News, bulletin board systems, mailing lists, print media or broadcast. For information about reproduction or multi-user subscriptions please e-mail < >

See also: WTO Secretariat explains its TRIPS 'negotiating history'