WTO asked to ensure TRIPS doesn’t undermine public health

by Chakravarthi Raghavan

Geneva, 20 June 2001 -- The forthcoming Doha Ministerial Conference of the WTO should take actions to ensure that the TRIPS Agreement does not in any way undermine the legitimate right of WTO members to formulate their own public health policies and implement them by adopting measures to protect public health, a group of 46 developing countries from - Africa, Asia.  Latin America and the Caribbean regions - have demanded in a paper to the Council for TRIPS, at its Special Discussion on TRIPS and Public Health.

The special discussion, the 46 countries said , is not a one-off event, but should be part of a process to ensure that TRIPS does not in any way undermine the legitimate right of WTO members to formulate their own public health policies and implement them and the TRIPS Council “must confirm this understanding” as early as possible. The discussion and presentations of countries and groups is expected to go well into Wednesday night, with the Chairman of the TRIPS Council, Amb. Boniface Chidyausiku of Zimbabwe, due to hold informal consultations on how to proceed further.

The discussions Wednesday showed that the developing countries were concerned over the need for their governments to be able to use the full range of options to ensure public health and public health measures in their countries , without fear of being dragged into disputes before the WTO, or in their domestic courts or subject to bilateral and other pressures not to exercise their rights.

They wanted a clear understanding and clarifications to be made by the WTO, with the special session as the start of a process, and for the Doha Ministerial meeting providing a firm clarification or reaching a common understanding, and not leave matters in a state of uncertainty or for dispute panels to interpret.  They also made it clear that where needed the provisions of the TRIPS agreement may need to be modified.

The European Community appeared to take a ‘positive’ approach, in that it agreed with the developing countries that the provisions of the TRIPS agreement should be interpreted in the light of the Articles 7 and 8 of the agreement, setting out the objectives and principles, and that developing countries should be able to make use of the provisions of the agreement about compulsory licensing (Art.  31) without fear of challenge.

The US position appeared to be that the objectives and principles set out in Art. 7 and 8 of the TRIPS, had been carried out by the provisions of the TRIPS and thus, in effect, Art. 7 and 8 may not be used to interpret or qualify the provisions of the agreement. It also seemed to take the position that Art 6 of the agreement, which stipulated that for dispute settlement purposes, the provisions of TRIPS could not be used to settle the issue of exhaustion of rights did not mean that parallel imports were permitted.

The EC also said that it favoured ‘preambular language’ in the Doha Ministerial declaration, which it insisted should launch a new round, that would clarify the grounds of public health exceptions, and that the EC was ready to consult and dialogue with other members on the problems of small economies and their difficulties of issuing a compulsory licensing to product a pharmaceutical product needed by them, when their own markets were too small to produce or absorb such production.

Norway suggested there should be due restraint in invoking the WTO and its DSU to deal with the issues of TRIPS implementation and public health.

The developing countries also made clear that for the purpose of ensuring development of their public health systems, it was essential, and their right, to issue compulsory licenses for ‘working’ of a patent within their territory - a view with which the US, EC, Japan and others disagreed.

Also, the EC, and even more strongly the US and Switzerland (and other industrial countries) made very clear that they did not want any diminution of IPRs.

While the US and EC positions seemed thus to be in some contrast, reading between the lines of the EC paper, and in conjunction with the legal position presented by the EU Commission to its member-states and its 113 committee on these very matters, several developing country diplomats felt that the EC was adopting a position s that it believes would ensure that the TRIPS and public health issues does not blow up into a major clash point before Doha ministerial where it wants to launch a new round of negotiations.

The EC Amb to the WTO, Mr. Carl Trojan, took the opportunity of the briefing over the TRIPS to point out that the US and EU have now agreed on the launch of a new round with ambitious objectives.

The United States, the EC and other industrial countries made references to the need for funding to help developing countries meet their public health needs, to the concept of ‘differential pricing’, noting that this would need steps to prevent ‘parallel imports’ of these back into the industrial markets, and other such ideas.

The WTO Director-General, in a press statement ‘contributed’ to this debate, by suggesting that the UN Secretary-General Kofi Annan’s $7 billion annual target for the global fund, while high, was just equivalent to 12 days worth of farm subsidies paid by OECD members.

While agreeing that differential pricing and such things could be discussed, the developing countries made clear that the place for this was not the WTO and its TRIPS Council, but the WHO, the UN and other fora.

Trojan, at his briefing, was challenged about his view that the Doha ministerial could adopt ‘preambular language’ about TRIPS and public health, by a questioner who said that in treaty interpretation, preambular language had no meaning.  Trojan merely said that still the view of ministers on this would count, and if the rules had to be interpreted or changed, it would be a lengthy process. The EC could consider it, he said, but seemed to imply it would be part of a new round.

Several NGOs, who planned to give their official reactions at the end of the debate, said that the EC was moving forward a little, but any belief that the civil, society agitation is a one-off or short-term affair would be mistaken, and in their view changes in the TRIPS rules were needed to put public health above any trade or other consideration or the corporate profits.

In their joint paper, the developing countries said that they “strongly believe “, said the signatories, that though some provisions of the TRIPS Agreement, drafted (at the time of negotiations) with “room to manoeuver” to serve the purpose of accommodating different positions of Members, may elicit different interpretations, “nothing in the TRIPS Agreement reduces the range of options available to Governments to promote and protect public health as well as other overarching public policy objectives.”

The TRIPS Council began the Special Discussion Wednesday amidst growing public pressures - from developing countries and their governments, public health and public interest civil society groups in the South and the North, which are demanding that public health and public interest concerns and the human right of affordable access to healthcare and medicines must prevail over the monopoly rights of pharmaceutical corporations, and either the TRIPS Agreement must be interpreted flexibly to enable this or the rules must be changed to secure this.

The civil society groups have made clear that they will keep up the pressure.

Symptomatic of the growing pressure on the WTO system, and the awareness of its ardent ideological supporters of the effect of the campaign against TRIPS on the WTO order, is a column in the Financial Times by Mr. Martin Wolf, an exponent of the liberal order, who acknowledges that the critics of the system have a case and that the strengthening of the worldwide IPR protection was indeed problematic, above all for pharmaceuticals. Mr. Wolf notes that while the creation of a temporary and restricted property right (under the patent system) within a country was workable, extending it across the world was problematic, and hence, the view of many trade economists who felt troubled by the inclusion of TRIPS in the WTO. But to Mr. Wolf (or the US, which is repudiating the START treaty and the Kyoto Protocol), this is all ‘past history’ and TRIPS can’t be changed.

Civil society outside have a different view, and the 5-year-old agreements don’t become history that cannot be changed or be treated as writs written on stone.  What was written, in secret negotiations away from public and parliamentary debates, will either be changed to deal with the public health problems, or take the system down with it.

The TRIPS Council heard a number of developing-country delegations who spoke in support of the 46- country submission. The sponsors include the 30-members of the African Group at the WTO, Barbados, Bolivia, Brazil, Dominican Republic, Ecuador, Honduras, India, Indonesia, Jamaica, Pakistan, Paraguay, Philippines, Peru, Sri Lanka, Thailand and Venezuela.

A number of them, as well as several other developing countries who did sponsor the written submission, spoke at the TRIPS Council in support of the submission.  All of them insisted on the need to interpret the TRIPS provisions in a flexible way, and consistent with the objectives and principles set out in Articles 7 & 8 of the Agreement.

While they appreciated the Council starting a process of consideration of the issue in the special discussion, as the ambassador of the Dominican Republic put it to the media outside, “it required 400,000 deaths in Africa to persuade the WTO to address this issue.”

Among those who spoke in the morning session were Zimbabwe, which introduced the paper and made a statement on behalf of the African group, Malaysia for the ASEAN, India, and Thailand.

Among the others who spoke in the morning session, before the Council adjourned for lunch to resume in the afternoon, the EC spoke on the lines of its own paper and expressed willingness to dialogue with others to enable ‘flexibility’, but insisted that there can be no downgrading of the intellectual property rights.

Norway, in effect, seemed to call for a moratorium on disputes under TRIPS.

The United States and Japan, two of the major promoters of transnational corporate interests, are yet to speak.

In their paper, the developing countries said:

·        The special discussion on TRIPS and Public Health at the TRIPS Council is not a one-off event. It should be part of a process to ensure that the TRIPS Agreement does not in any way undermine the legitimate right of WTO Members to formulate their own public health policies and implement them by adopting measures to protect public health.

·        The TRIPS Agreement allows for implementation of public health policy measures. Nevertheless, where the provisions of the Agreement may be considered insufficient to protect public health, Members may wish to bring further proposals for modifications in the Agreement, with a view to increase its flexibility.

·        Nothing in the TRIPS Agreement should prevent Members from taking measures to protect public health.

·        Each provision of the TRIPS Agreement should be read in light of the objectives and principles set forth in Articles 7 and 8. The protection of intellectual property rights, in particular patent protection, should encourage the development of new medicines and the international transfer of technology to promote the development of manufacturing capacities of pharmaceuticals, without restraining policies on access to medications.

·        Compulsory licenses are an essential tool for Governments to carry out public health policies, as they may facilitate access to medicines through prevention of abuses of rights, encouragement of domestic capacities for manufacturing pharmaceuticals and in cases of national emergency or other circumstances of extreme urgency, or of public non-commercial use. Nothing in the TRIPS Agreement limits the grounds for Governments to issue compulsory licenses.

·        Parallel imports can also be an important tool to ensure adequate access to medications. In light of TRIPS Article 6, the TRIPS Council should confirm the unconditional right of Members to determine the way in which exhaustion of rights regimes are applied in their jurisdiction.

On the ideas being promoted to deflect the pressure for TRIPS changes or interpretations, including the ‘differential pricing’ issue as well as global funds for access, the developing-country paper said:

“While we favour discussions on differential pricing arrangements, they are only part of a broader set of initiatives to improve access to medications.  Differential pricing should in no way be used to limit the flexibility of the TRIPS Agreement in any of its provisions. Given that the issue is not within the sphere of discussions on intellectual property rights, it should not be covered by the TRIPS Council, but rather by other intergovernmental international organizations, such as the World Health Organization.”

The paper said that besides the issues raised in their paper, other issues related to the provisions of the TRIPS Agreement also deserved further discussion by Members, such as the extension of transitional arrangements.

“Finally,” they said, “ the Ministerial Conference in Qatar in November 2001 will be the best opportunity to take such action as will ensure that the TRIPS Agreement does not in any way undermine the legitimate right of WTO Members to formulate their own public health policies and implement them by adopting measures to protect public health.”

The debate has begun amidst considerable lobbying and pressure from the pharmaceutical industry on the smaller developing countries. Diplomats from some of these, speaking on condition of anonymity, said they and their governments were under pressure.

In the statement on behalf of the African Group, Zimbabwe’s Minister Counsellor, Tadeous Chifamba said by agreeing to the discussion, the WTO members had taken cognisance of the increase in public criticism and civil society campaigns against the perceived negative effects of TRIPS, and were ready to respond.

The members should reach a common understanding that asserted and confirmed the balance in the TRIPS agreements which recognized the importance of patent protection, but provided that governments may adopt “all appropriate measures to protect the health and lives of their people.” This assurance and guarantee was needed to enable governments to adopt such measures, without fear of litigation, at national level or at the WTO, or bilateral pressures being applied on them.

The Special Session should start to identify the relevant provisions of the agreement and exchange views to forge a common understanding. Also, at Doha ministerial conference, a special declaration should be issued affirming that nothing in the TRIPS agreement shall prevent members from taking measures to protect public health.

(SUNS will carry further reports and analysis in subsequent issues). –SUNS4919

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

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