TRIPS consultations on implementing para. 6 on public health recessed

An intermission has been called in the divisive WTO deliberations on TRIPS and public health, as African member nations voiced frustration at the lack of progress in ensuring effective access to affordable medicines by countries unable to manufacture these drugs themselves.

GENEVA: The Chairman of the WTO’s TRIPS Council, Ambassador Eduardo Perez Motta of Mexico, was to hold “further consultations” in the week of 2 December on implementation of paragraph 6 of the Doha Ministerial Declaration on the TRIPS Agreement and Public Health, after the African Group on 29 November in effect said “enough is enough” over discussions on paragraph 6 based on Motta’s draft proposals for decisions.

Motta told the TRIPS Council that members would need to take stock of the situation and reflect their positions, consult capitals and try to find additional flexibility in their positions, to enable him to reconvene the intensive process of consultations to find a solution to implement the mandate in paragraph 6.

That paragraph, which was agreed by the WTO’s Ministerial Conference in Doha last year, instructs the TRIPS Council to find a solution by 31 December enabling countries with “insufficient or no manufacturing capacities in the pharmaceutical sector” to use the available flexibilities under the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), including compulsory licensing, to meet public health problems.

The African Group position was set out in a 29 November statement at the TRIPS Council by Kenya on behalf of the group, and received the support of other developing countries from Asia and Latin America. (See box for full text of statement.)

“If discussions continue on the same lines as has been conducted to date, then it is unlikely that a desired solution will be forthcoming, particularly one meant to address the public health problems afflicting Africa,” said the Kenyan Ambassador Amina Chawahir Mohammad in the statement.

The position of the African Group was reached after an assessment by them in the light of US moves to restrict the scope of any decision to implement paragraph 6 to epidemics as a result of three specific diseases (HIV/AIDS, tuberculosis and malaria), Japan’s call to exclude vaccines from any decision, and the EC’s proposals to place severe restrictions on suppliers and exporters of generic pharmaceuticals in developing countries.

Though the positions of these three, and of Canada and Switzerland, seemed different, trade diplomats of developing countries said that in effect, they were each defending and promoting a particular interest of the big pharmaceutical corporations, and together making sure that the Doha declaration about available flexibilities under the TRIPS Agreement cannot be implemented.

Trade diplomats had earlier said, after a morning ‘consultation’ called by Motta with a small group of countries, that it became evident that the US, the EC, Japan and Switzerland in effect were wanting Motta to come up with a revised text reflecting their positions but were not willing to formally propose the changes themselves.

Motta himself seemed unwilling to go beyond what he had done, and for which he was already being criticized by the developing countries and civil society groups for reflecting the US and Big Pharma positions in the wording of his draft decision of 24 November and subsequent changes he introduced.

According to trade diplomats, the US (in promoting the interests of Big Pharma) has been attempting to narrow down the remit of any decision to “infectious diseases” and specifically limiting it to three diseases: AIDS/HIV, TB and malaria.

At the same time, the EC has been engaged in trying to pile more and more restrictive conditions on importers and suppliers from developing countries, using the Article 31(f) provisions of the TRIPS Agreement on compulsory licensing, conditions that will in effect reflect the EC position in a dispute it had brought against Canada - and lost - to prevent use of the “limited exceptions” to patent rights (in Article 30 of the TRIPS Agreement) on generic drugs.

“Disappointed and frustrated”

With the US trying to limit the scope to the three specific diseases, Japan trying to exclude vaccines and the EC placing such restrictions that no developing-country generic drug producer would supply or export to other countries, the African Group decided to call a halt.

In the statement at the TRIPS Council, made available outside to the media, Kenya said that despite the efforts of Motta, “we are far from getting a practical and workable solution to serve the objective of paragraph 6 of the Declaration.”

The Kenyan ambassador said: “... some of the proposals [in the Motta text of 24 November] appear to be replacing the Declaration and adding extra obligations on members instead of addressing the difficulties identified in paragraph 6. For instance we have spent a lot of our time in defining the scope and coverage of diseases and products while the Declaration is very clear on this. Similarly we have laboured on defining which member qualifies to benefit from the solution, yet paragraph 6 of the Declaration is definite enough. And frankly, we appear to be getting nowhere on the issue of technology transfer and domestic markets, as well as the main approach to adopting the solution.”

“Any further engagement in this process must be meaningful,” Amina Mohammad said. “Further, there is no merit in coming up with a purported solution that amounts to a step back from Doha or even that creates further restrictions on the current flexibilities in the TRIPS Agreement as highlighted in the Declaration.

“In this context, the draft of 24 November represents a step back. The earlier drafts seemed to take on board our concerns and aspirations, and it was on this basis that the Africa Group decided to continue work on those drafts with a view to improving on them. We have been disappointed that instead the positive approach in the earlier drafts has been eroded especially with reference to domestic markets and technology.”

“Due to the foregoing,” the Kenyan envoy said, “the African Group is disappointed and frustrated by the progress made so far. The Group feels that if discussions continue on the same line as they have been conducted to date, then it is unlikely that the desired solution will be forthcoming, particularly one meant to address the public health problems afflicting Africa.

“Members may wish to seriously reflect on the reasons why the African Group raised this issue in the TRIPS Council prior to Doha and their subsequent expectations after Doha as stated in various communications to the TRIPS Council. This will probably give them a better understanding of the nature of the solution Africa expects.”

While Africa, and other developing countries from Asia and Latin America which supported the African stand, viewed the Motta text as narrower than the Doha declaration, a statement by the US envoy, Amb. Linnet F. Deily, left little doubt that the US was seeking to narrow down the scope.

“... our goal here is to fight the scourge of AIDS and other epidemics. We should not endanger the progress achieved at Doha and the careful balance that was successfully struck by being diverted away from helping poor countries and or towards non-epidemic ‘lifestyle’ health issues.”

A WTO official, in briefing the media, said the discussions showed there was no sign of movement by any delegation.

In his statement at the TRIPS Council, Amb. Motta said that he had the sense that “delegations need time to take stock of the situation that has been reached and to consult in capitals.” He urged the delegations to use the time to try to find additional flexibility in their positions.

Motta was to have contacts with delegations in the week of 2 December and hoped to have a draft to put to the TRIPS Council in time for the submission of its recommendations to the WTO General Council meeting scheduled for 10-12 December.

Trade diplomats and observers said that they expect the US and the EC to try and apply more pressures in the African capitals to get their way.

After attempting to divide the developing countries as between Africans and the Asians and Latin Americans, the major industrial countries in recent days also sought to divide the Africans themselves, and all this has now become counter-productive. (SUNS5246)                      

From Third World Economics No. 295 (16-31 December 2002)