TRIPS-Health talks to continue, in structured, systematic way

by Chakravarthi Raghavan

Geneva, 22 June 2001 - The issues raised in Wednesday’s discussions on TRIPS and Access to Medicines will be the focus of discussions, both in the TRIPS Council and as part of the preparations for the Doha Ministerial Conference, both to clarify the ‘flexibilities’ available under TRIPS and a declaration to be issued by Ministers at Doha, the Chairman of the TRIPS Council, Amb. Boniface Chidyausiku of Zimbabwe told a press conference Friday afternoon.

Chidyausiku was speaking after a morning meeting of the TRIPS Council where the follow-up to the Wednesday’s debate, and for further discussions in a more structured and systematic way was discussed and it was agreed that the secretariat should now prepare a checklist of all relevant TRIPS provisions and issues identified in connection with them.

Chidyausiku will hold an informal TRIPS Council meeting on 25 July for a discussion based on the checklist. A full day, 19 September, is to be set for the next formal discussion of the issue in the TRIPS Council.

The Chairman said that in the light of his consultations and contacts with members after the formal plenary debate, and the meeting of the Council this morning, it was clear that all members saw Wednesday’s discussion as a start of a process. “Some WTO members made it clear that they see the Doha Ministerial Conference as an important part of this process,” Chidyausiku said, adding that a number of developing countries had said that if discussions and clarifications of the TRIPS provisions and the ‘flexibility’ available, did not go far enough to meet their needs, the provisions of the agreement would need to be improved.

When a correspondent raised the question that this could mean changes and amendment to the rules, Chidyausiku pointed to the US demand for changing the Anti-Ballistic Missile Treaty, and said the TRIPS Agreement, Article 71.1 itself provided for its review (starting this year) and if changes were warranted, they could be brought up by members.

As a result of the discussions, he said, the TRIPS Council has now on hand an “intensive work programme” to systematically examine all the TRIPS provisions and with a view to clarifying the provisions.

As part of the Doha preparations, there were proposals for some preambular paragraphs and a substantive paragraph in the political declaration to deal with the issues raised. The Ministers could provide guidance and clarification, or mandate a further work to be done by the TRIPS Council, he added.

In giving his own assessment of the detailed and thoughtful presentations in the formal plenary debate, and on his contacts with delegations, and he believed it was a generally shared view, that all delegations were positive and constructive. Though there were some differences, he could say that all members were determined to ensure that the TRIPS Agreement was part of the solution and not part of the problem of meeting the public health crisis in poor countries - including the HIV/AIDS crisis in Africa, but by no means the only problem.  Wednesday’s discussions was not on occasion for attacking TRIPS or the patent system, since members recognized that patents were important for public health policies by providing incentives for R & D into new drugs, and that TRIPS rules were important.

“At the same time, members are committed to ensuring that TRIPS Agreement does not stand in the way of access to existing drugs, especially in the poorest countries.” The TRIPS Council had much discussion on the flexibility available in TRIPS, and references made to various provisions, with frequent mention of those dealing with compulsory licensing and parallel imports, and the need for the Agreement to provide sufficient flexibility to enable public health needs to be met, if properly interpreted and applied.

However, there were concerns that sometimes these provisions were “interpreted too narrowly and that some times countries came under “undue pressure not to make full use of the flexibility” that the TRIPS provided for them. “Important re-assurances in recognizing the rights of countries to use these provisions to the full were given,” said Amb. Chidyausiku. One of the major tasks of the TRIPS Council in the coming months would therefore be “to seek common understandings of the flexibility in the TRIPS Agreement, so as to ensure that all members have the necessary sense of security and legal certainty that enables them to use these provisions to the full,” he added.

He noted that some speakers from the developing countries had said if the flexibility of TRIPS proves to be insufficient, “they need to make proposals to modify the Agreement, in order to increase its flexibility.”

He pointed out in this connection that some delegations had suggested that members should refrain from using the WTO dispute settlement procedures in cases related to TRIPS and public health, and some had also called for extension of the TRIPS transition periods in this area.

For the future, he said, the TRIPS Council has an intensive work programme to systematically examine all the provisions and issues raised with a view to clarifying the flexibility available. It was also clear that there would be discussions, both in the TRIPS Council and as part of preparations for the Doha Ministerial Conference about the sort of declaration Ministers should make.

Responding to questions, Chidyausiku said that issues like ‘tiered pricing’ and the global health fund had been mentioned. And while the public health crisis in the developing world needed to be tackled in several ways, the issues of ‘tiered pricing’ and ‘global health fund’ etc were not the concern of the WTO and the TRIPS Council “and we will only look at issues with specific reference to the TRIPS agreement.”

The Director of the WTO’s TRIPS division, Mr. Adrian Otten, who was with Chidyausiku, intervened to suggest that many countries had talked about ‘tiered’ pricing and saw it as a way of reconciling patents and encouraging R&D with ensuring affordable access to pharmaceuticals, but many others thought this was not an issue to be addressed in the TRIPS Council.

For the workshop co-sponsored with the WHO at Hosbjor in Norway, the WTO secretariat had promoted the idea of tiered pricing as the solution, and had sought to structure the discussions along those lines. Several of the experts at the meeting, including some leading civil society organizations, said that while this could be considered, it was not an alternative to tackling the WTO TRIPS rules.

When Chidyausiku was asked later about the Otten’s clarifications, and whether the Chairman wanted to ‘modify’ his answers, Chidyausiku said that the WTO members could not discuss the issues of funding. That is for the international financial institutions to look at.

“As for tiered pricing, as far as the TRIPS agreement is concerned, there is no provision in it for us to look into it. We very much believe we will get bogged down in discussing issues not provided for in the TRIPS. So we discussed issues pertinent to us and not issues which are relevant in terms of the obstacles faced by developing countries, but which are not in our jurisdiction. There are other fora where these can be discussed.”

Asked about the nature of any declaration or statement or clarification that Ministers could make at Doha, and what value could be attached to it in terms of the dispute settlement system and panels, Otten said that the TRIPS could consider the provisions of the agreement and the way it should be interpreted, and make recommendations to the General Council which could adopt them or recommend to the ministers at Doha.

If any clarification or interpretation was provided in terms of Art. IX:2 of the WTO agreement, and in accordance with its requirements for decisions (by consensus, or as provided by some members proposing and this being voted) it would be legally binding, Otten explained.

But even in its absence, a political declaration and view of Ministers would carry considerable weight with any panel, he suggested.

“But we have not reached the point of considering the legal form to be given to the outcome of the work of the TRIPS Council in this area,” and the Council was now considering the substance.

Once there is an understanding on the substance, giving it a legal form - an interpretative decision based on the recommendations of the TRIPS Council and then by the General Council was much easier.

If no agreement is reached in the TRIPS Council, the issue could be raised at the General Council, and there were provisions for adopting a decision, if necessary by voting. The major question is to reach agreements on substance.  Once this is done, the legal part of giving effect to it was relatively simple and quick.

On a moratorium on TRIPS disputes relating to health, Chidyausiku said many delegations had made a proposal, but this had not been discussed so far. What ministers would do in Doha would also be looked at in the preparatory process.

Earlier, the chairman said there was general agreement on need for patent protection for R & D, not only for the countries of the North, but the South too, in terms of their genetic resources and traditional knowledge. – SUNS4921

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

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