archives: WTO InfoTWN Info Service - TRIPS Council meeting Feb 5, 2003
TWN Info Service on WTO Issues (Feb03/1)
February 6, 2003
GenevaDear friends
RE: INFORMAL TRIPS COUNCIL MEETING, FEBRUARY 5 ON PARAGRAPH 6 NEGOTIATIONS
Yesterday, a TRIPS informal consultation was held at the level of heads of delegation/senior officials. The 2-hour consultation was held because some officials from capitals are in Geneva attending the Trade Negotiations Committee, and because the Africa Group had reserved its comments on the EC proposal at the previous consultation. Japan also put forward a proposal as an attempt at "bridge-building". No decisions were reached, although the developing countries have sent a clear message that they will not compromise on the scope of disease.
The Chair of TRIPS Council will continue conducting informal consultations with Members, starting today. The TRIPS Council is set to report to the General Council when it meets on February 10-11. However, no new deadline has now been set for the reaching of conclusions.
Please see below a report on the debate as well as the copy of the proposal from Japan.
With best wishes,
Cecilia Oh
Third World Network
------------------------"DON'T WASTE OUR TIME"
Developing countries criticise attempts to limit scope of diseases in Paragraph 6 negotiationsUpdate on 5 Feb 2003 informal meeting of TRIPS Council and Background to the Negotiations on Para 6
Cecilia Oh, TWN, Geneva
Developing countries have told other WTO Members on 5 February at an informal meeting of the TRIPS Council that they will not accept any compromise that would restrict the scope of diseases in the solution to the Paragraph 6 problem. It would therefore, be a waste of time trying to discuss proposals that did would not help move negotiations towards consensus, the developing countries said.
WTO Members have been in intense negotiations to address the problem (the Paragraph 6 problem) of the inability of many developing countries to effectively use compulsory licences to obtain medicines from domestic producers, since the majority of developing countries do not have, or have insufficient, domestic manufacturing capacity in pharmaceutical products. At a high-level (heads of delegation and senior officials) informal consultation today, WTO Members resumed talks, which centred on whether the solution should or should not be limited to certain diseases, with no decisions being reached once again.
Text of December 16
In December 2002, the WTO Members had been on the verge of agreement until the US withheld consensus to a text (dubbed the December 16 text) proposed by the Chair of the TRIPS Council. The December 16 text comprised a draft decision based on the waiver of certain requirements for the issue of compulsory licence, to enable the export of medicines produced under such licence to countries in need.
The US objection centred on the scope of disease coverage, and the reference within the December 16 text to Paragraph 1 of the Doha Declaration. This reference to "public health problems as recognised in Paragraph 1 of the Declaration" was too broad, said the US, who preferred more specific text on disease coverage.
The US proposed reference to "HIV/AIDS, malaria, tuberculosis or other infectious epidemics of comparable gravity and scale, including those that may arise the in the future". This, according to the US, is what it considered to be the Ministers' intention at Doha. The concern of the US was that the negotiations on paragraph 6 would expand the scope of disease beyond that intended at Doha. (In a letter sent to several developing country Ministers in January, Robert Zoellick alleged that there were attempts by some WTO members and advocacy organisations to expand the scope of disease to allow countries "to override drug patents to treat a wide range of public health concerns, including obesity, asthma, cancer, diabetes, among others --- including the use of viagra".)
Nearly all developing countries objected to the US position. They were opposed to a narrowing of the mandate agreed at Doha. In a strongly worded statement (in November last year), the Africa Group of countries said, "some . proposals 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". The Group added that "if discussions continue on the same line as they have been conducted to date", it was unlikely that a desired solution, "particularly one meant to address the public health problems afflicting Africa", would be forthcoming.
Not long after, the negotiations broke down, and the TRIPS Council missed its Doha-mandated deadline to find a solution before the end of 2002.
List(s) of diseases
The EC then proposed its compromise in January, which would seek to place a footnote to explain the text's reference to Paragraph 1 of the Doha Declaration. The footnote reads: "this covers at least HIV/AIDS, malaria, tuberculosis, yellow fever, . (a listing of 22 diseases). In addition, the proposal also provides a role for the WHO "to give its advice as to the occurrence in an importing Member, or the likelihood thereof, of any other public health problem", when requested by a Member.
At the informal meeting of the TRIPS Council on January 28 - the first in the new year - Brazil and China said that they would not accept the EC proposal as it would narrow down the scope of paragraph 1 of the Doha Declaration. Other developing countries such as India, Argentina, Colombia, Peru, Thailand and Bangladesh (on behalf of the LDCs), also indicated their unease with such a limitation.
The African group had reserved its position, pending informal meetings among its members.
At the informal meeting on 5 Feb 2003, Morocco, speaking for the Africa Group, made it clear that Africa was not prepared to study proposals that reduced the scope of Paragraph 1 of the Doha Declaration.
At this meeting, a proposal was floated by Japan to "bridge the gap" - between that of the developing countries and those countries supporting the US and EC approaches. The Japanese proposal puts forward a list of diseases (identical to that proposed by the EC), which the Paragraph 6 solution would "cover at minimum". The proposal also adds that the TRIPS Council (instead of the WHO as in the EC proposal) would be mandated to confirm, "if necessary, the coverage of other disease and add to the list". The TRIPS Council would also be able to "make available for itself, as appropriate, views of any outside experts" on making such decisions to add to the list.
Whilst the Japanese proposal attracted few comments, it seemed clear that it found little favour with the developing countries.
South Africa said that it would be a waste of time to consider proposals that cannot draw Members into a consensus. Zimbabwe also said that it was not prepared to discuss any proposal that will not bring members closer. Furthermore, it would not consider proposals that would take away the right of governments to determine whether there is a public health emergency (in which compulsory licences can be quickly issued without having to first negotiate with the IPR holders). Kenya said the TRIPS Council had to focus on how to implement Paragraph 6, rather than on restricting the scope of diseases.
Thailand said that any attempts to clarify Paragraph 1 of the Doha declaration were "non-starters". Brazil also said that it would not accept narrowing down the scope of diseases - adding that developing countries too, had to respond to public opinion in their respective countries.
Morocco speaking for the African group, said the Chair's December 16 text seemed to be the best possible compromise and therefore, the Africans had agreed to it, even through it did not meet all their concerns. The Group indicated that it would accept the December 16 text, without any limitations to the scope of diseases, as a package. Morocco also stated that the Members must come to a mutual understanding of the issues and concerns on the table, and the need to find the correct balance between concerns over the economic interests in intellectual property rights and that of people dying of diseases.
"Freeze the text"
However, the US had said it was still unable to join the consensus. Although it was not seeking to narrow down the scope of the Doha Declaration, the problem with the December 16 text is in the interpretation of its coverage.
According to the US, the Doha Declaration had used "constructive ambiguity" to achieve consensus, but there are now serious concerns that some parties would interpret the coverage of disease in a way that did not conform to the Ministers' intentions in the Doha Declaration. This causes deep suspicion in the pharmaceutical industry that intellectual property protection could be undermined. There was a need to maintain the confidence of pharmaceutical companies about IPR protection, said the US.
South Africa suggested that energies might then be better spent working directly with the pharmaceutical industry to allay its fears. In that context, South Africa proposed "freezing" the December 16 text, whilst confidence building work was done (outside the WTO) to assure the industry that that intellectual property protection would not be undermined. In the meantime, however, there should be no attempt to list the diseases.
This approach garnered some support from Norway, Chile, Bulgaria, Thailand and Guatemala.
Deadlines
The chair will hold further consultations, on the proposals as well as on what to report to the General Council, which meets on February 10-11. The next time the issue will be discussed formally will be the TRIPS Council meeting, beginning February 18.
No new deadlines have been set for a conclusion of the negotiations (some say, to avoid further embarrassment). Some negotiators observe that there may be attempts to delay the negotiations so that the issue could be brought to the Cancun Ministerial Conference. However, the developing countries, particularly, the Africa Group, Brazil and India, have said that it would be pointless to delay a decision since the position of the Ministers would not be any different from that of their negotiators in Geneva.
--------------------
Japanese proposal on TRIPS and Public Health for bridge-building
To bridge the gap by a package comprising two decisions of the General Council, both of which are integral parts of an overall agreement.
One decision is to adopt the TRIPS Council Chair's text of December 16, 2002, as is, and the other is to be an addendum to the first and will contain the following points;
(DRAFT)
IMPLEMENTATION OF PARAGRAPH 6 OF THE DOHA DECLARATION ON THE TRIPS AGREEMENT AND PUBLIC HEALTH
Addendum
1. The public health problems referred to in paragraph 1(a) in the Decision (WT/GC/ .) will cover at minimum those caused by diseases listed in the Annex to this addendum.
2. The TRIPS Council will be mandated to be ready to confirm, if necessary, the coverage of other disease and add to the list, as Addendum, and to make available for itself, as appropriate, views of any outside experts in the course of its deliberations.
ANNEX
yellow fever,
plague,
cholera,
meningococcal disease,
African trypanosomiasis,
dengue,
influenza,
HIV/AIDS,
leishmaniasis,
tuberculosis,
malaria,
hepatitis,
leptospirosis,
pertussis,
poliomyelitis,
schistosomiasis,
typhoid fever,
typhus,
measles,
shigellosis,
haemorrhagic fevers and
arboviruses
wto news | wto info | www.agp.org (archives) | www.all4all.org