Marking time in TRIPS consultations on public health?

by Chakravarthi Raghavan

GENEVA: Informal consultations on 7 November within the TRIPS Council on implementation of Paragraph 6 of the Doha Ministerial Declaration on the TRIPS Agreement and Public Health received new contributions from the European Communities and South Africa, and were to resume on 18 and 21 November.

The contributions of the EC and South Africa were explained and discussed at the informal consultations. The meeting also heard an assessment from the Chairperson, Amb. Eduardo Perez Motta of Mexico, who suggested that an agreement was possible without too much difficulty “with a cooperative spirit on the part of members” on some of the issues, while major differences continued on others.

A number of elements for a decision have been identified so far, but consensus is yet to be reached.

On the diseases to be covered, in Paragraph 1 of the Doha declaration, the Ministers recognized “the gravity of public health problems afflicting many developing and least developed countries, especially those resulting from HIV/AIDS, tuberculosis, malaria and other epidemics.”

There are differences as to whether the “gravity” of the problems should be read as referring to “grave public health problems.”

The EC has suggested a wording “cases where the gravity of public health problems afflict the developing and least developed countries...”.

A number of developing countries argued on 7 November that the EC wording in fact narrowed down the scope set out in the Ministerial Declaration.

On product coverage, the EC compromise will include products made from patented processes and diagnostic kits.

The EC has also suggested that the OECD and high-income economies (under the World Bank classification) would not be eligible to be importing countries. [The World Bank classification of high-income countries among non-OECD economies comprises: Brunei, French Polynesia, Guam, Hong Kong China, Macao China, New Caledonia, N. Mariana Islands, Singapore and Taiwan (all in Asia); Slovenia (East Europe); Andorra, Channel Islands, Cyprus, Faroe Islands, Greenland, Liechtenstein and Monaco (Rest of Europe); Israel, Kuwait, Qatar and United Arab Emirates (Middle East); and Aruba, Bahamas, Bermuda, Cayman Islands, Netherlands Antilles and Virgin Islands (Americas).]

Least developed countries and low-income developing countries would be eligible as importers.

Other developing countries would be eligible as importing members to address situations of national emergency or extreme urgency, especially those relating to HIV/AIDS, TB, malaria and other epidemics. The eligibility of such countries may be reviewed upon request, according to the EC compromise.

Several developing countries at the consultations objected to such “a priori” exclusions, creation of new categories of countries and use of income levels as a criterion, where the Doha Ministerial Declaration referred to countries with insufficient or no manufacturing capacity.

In terms of legal mechanisms to give effect to Paragraph 6, the EC has proposed a simultaneous agreement this year on a waiver and an amendment to the TRIPS Agreement. The waiver would apply until the amendment can take effect. The amendment would take effect no later than the agreement on the Doha agenda.

The US and Canada preferred a waiver alone.

Brazil and a number of developing countries opposed linking the decision with the “single undertaking” of the Doha agenda. Kenya and Lesotho were among those supporting the waiver-plus-amendment approach.

There are also issues about whether the appropriate legal mechanism should be the amendment approach (i.e., amending Article 31 of the TRIPS Agreement, the provision which governs compulsory licensing) or an authoritative interpretation of Article 30 on “limited exceptions” to patent rights that would enable a country to authorize production of generic drugs and supply to another country.

The South African paper received support from a large number of developing countries, including Egypt, Sri Lanka, Pakistan, Indonesia and Brazil.

Third World diplomats said that the US has been applying considerable pressure in capitals of African countries and asking them not to sign on to the South African paper.

Chairman Motta has said that he would continue further consultations in small groups, and convene the larger group and plenary for transparency exercises. His compromise paper so far seems to be seeking to bridge the gaps among the major industrialized countries. (SUNS5231)

From Third World Economics No. 294 (1-15 December 2002)