US pressures SSA capitals on TRIPS and Public Health

Geneva, 12 Nov (Chakravarthi Raghavan) -- The United States is applying considerable direct pressures at capitals of Sub-Saharan African (SSA) countries, asking them to instruct their trade delegations in Geneva to oppose several of the proposals (from the African Group and other developing countries) before the TRIPS Council for implementation of Paragraph 6 of the Doha Ministerial Declaration on TRIPS and Public Health.

The letter to the capitals of the SSA countries, from the Assistant US Trade Representative to Africa, Ms. Rosa Whittaker, dated 25 October, on the TRIPS and Public Health issue, is drafted in language reflecting the stand and position of the U.S. BigPharma corporations, and their efforts to dilute and rewrite the Doha Declaration on this.

The US stance is aimed both at other developing countries, as well as the Europeans who have taken a slightly more accommodating position - partly because of their own public interest civil society movements as well as the strong viewpoints in the European Parliament.

Civil society groups closely following and monitoring the WTO and the US and EC positions, have obtained copies of the letter of the Asst. USTR, and are readying a campaign and widely denouncing the US pressures.

The issue is expected to be brought up at Sydney (Australia) where a group of 25 countries are meeting at Ministerial level this week, where the ‘mini-ministerial’ is to assess the progress on the negotiations launched at Doha, and how to advance them.

The fact of the slipping deadlines on issues of particular concern to developing countries, and its likely negative impact on other issues of interest to the developed world, has now come to the forefront. Apart from the TRIPS and Public Health issue, the Whittaker letter also relates to the implementation issues, relating to the Agreement on Textiles and Clothing (ATC).

On both these subjects, the US letter, through its embassies, to the trade ministers and trade establishments of the SSA countries and seeking their support for the US position and for instructions to the Geneva negotiations, provides some misleading information aimed at confusing the capitals.

On the TRIPS and Public Health issue, the US attempt seems to be aimed at effectively re-writing the Doha declaration on TRIPS and Public Health (paragraph 6), in terms of the mandated decisions to “find an expeditious solution” to the problem of WTO members “with no or insufficient manufacturing capacities in the pharmaceutical sector who could face difficulties in making effective use of compulsory licensing under the TRIPS Agreement.”

The US stance appears to be aimed at narrowing the public health issues that the Doha declaration encompasses, the beneficiary importing countries and the ‘supplying’ countries that could provide the generic medicines, and make such supplies and export as complicated and time-consuming as possible so that the suppliers would not be too anxious to export and cut into the BigPharma profits.

The Doha Declaration affirmed (para 4) that the TRIPS Agreement does not and should not prevent WTO members from taking measures to protect public health and promote access to medicines for all. In para one, it recognized the “gravity of the public health problems” afflicting many developing countries and the LDCs, “especially those resulting from HIV/AIDS, tuberculosis, malaria and other epidemics.” It thus covers, and was intended to cover, all public health problems in developing countries, and not merely the specified diseases (HIV/AIDS, TB, malaria). It affirmed the flexibilities available under the TRIPS Agreement and the right of countries to take actions to secure them and meet “public health problems”

In terms of paragraph 6, the discussions at Geneva have focussed on the issues of product and disease coverage - products of the pharmaceutical sector, including active substances for manufacture of medicines; on disease coverage, while HIV/AIDS, TB and Malaria are mentioned, the use of ‘especially’ in that paragraph, in terms of its ordinary dictionary meaning and international public interpretation law means that other diseases too may fall in these categories.

Also, the discussions have centered on who are the ‘eligible’ countries that could import, who could be the supplier countries.

The USTR letter to African countries covers some of these, and seeks African support for the position paper of the Mexican chair of the TRIPS Council (Ambassador Eduordo Perez Motta) - which will have the effect of trying to limit the countries that can qualify to be ‘eligible countries’ to issue compulsory licences and import from elsewhere, and also the ‘supplying’ countries.

Part of the US thrust is also probably aimed at preventing pharmaceutical firms and generic manufacturers in other developed countries in making use of these provisions to export to the eligible countries.

Interestingly, the European Parliament, has recently adopted a resolution asking the Commission to amend its patent directive to enable issue of a compulsory licence to an European manufacturer and enabling such producers to ‘export’ the production to a developing country with ‘no or insufficient manufacturing capacity’.

Some civil society groups in the US and Europe view this as an important advance; other are more sceptical and cautious: the EC Commission and the Council of Ministers would still need to agree to this and issue such an amendment, and even thereafter the Commission or a member-government may or may not issue such a licence, and/or stipulate conditions that may inhibit supplies.

The EU has both pharmaceutical interests to protect, and member-countries where there are strong opinions about the cost of health care and prices of proprietary medicines.

One thing seems to be fairly clear: the US, EC, Japan and others dare not end the talks at the WTO on this issue, without reaching a solution satisfactory to the developing countries, and in particular the African countries. Any failure here, will result in a considerable backlash.

At the same time, unless the African countries take care, they may end up with a phyrric victory - where they may hope to settle for something, but find that ‘that something’ does not deliver: and they get neither the active substances for import and production of generic medicines inside their country, nor the medicines themselves; neither the cheap medicines needed nor the promises of investment and technology transfer.

Manufacture and distribution of pharmaceuticals at cheap prices for their populations needs of course production and technology, and capital and investment. But it needs something more too, in terms of infrastructures - a need clearly foreseen as early as the 1978-79 Alma Ata Declaration and the WHO programmes of essential drugs that was enunciated at the WHO by its then Director-General Hafdan Mahler, and adopted enthusiastically by the World Health Assembly, committing WHO members to adopt a range of national and international policies for implementing them.

These have been quietly forgotten and ‘buried’ by his successors, as well as the developing countries themselves who were committed to primary health care and essential drugs.

It also requires a considerable amount of expertise and capacity within a country, to adequately ‘test’ on a continuing basis, the quality of the medicines produced inside the country, and its distribution, and a public machinery to get the information across to the medical practitioners and public health care institutions, rather than depending only on the pharmaceutical industry and its field medical representatives.

The USTR letter to the SSA countries, refers to the mandate to the TRIPS Council and need to find “a practical solution” before end of 2002, to meet the problems that African countries and others face in making effective use of compulsory licensing of pharmaceuticals.

In effect this also tries to restrict the scope of the Doha declaration.

The US also commends the proposals of Amb. Motta - which several developing country delegations involved in the TRIPS consultations have viewed as one aimed at bridging the gaps between the US and EC and not that between the North and the South.

The US has asked the SSA countries to instruct their Geneva representatives to respond favourably to Motta’s paper, and to work in Geneva with the US, to support a solution that addresses Africa’s interests and particular circumstances.

The U.S. proposals, the Whittaker letter says, supports a solution that focuses on the serious epidemics faced by Africans- HIV/AIDS, malaria, and tuberculosis.

“Broadening the solution to cover any public health problem, as some are advocating,” the US claims, in an effort to rewrite para one of the Doha Declaration and restrict its scope, “would divert attention and resources away from these epidemics, at Africa’s expense, and risks trivializing the gravity of these serious epidemics.”

The US also wants to restrict its scope to “low-cost essential medicines” and not expand it to products including “the full range of diagnostic products and other health-related items.”

The compulsory licensing provisions of the TRIPS Agreement (Article 31) is available to all Members of the WTO. But the US is clearly trying to limit its scope, by arguing that the benefits of compulsory licensing be limited to those in greatest need.

It mentions in this regard the least developed and low-income developing countries that do not have the capacity to produce essential drugs domestically (including all sub-Saharan African countries).

“Allowing developed countries or advanced developing countries to import under compulsory licensing might encourage the solution to be abused for commercial purposes - exporters would likely focus their attention on more lucrative developed country markets rather than on the developing world.”

Towards this end, the US wants to limit the ‘exporters’ under compulsory licensing to least developed and developing countries. Permitting developed countries to be exporters would hinder technology transfer and pharmaceutical company investment in the developing world, it argues in very misleading terms.

It also insists that the mandate to the TRIPS Council is to solve a specific problem in the TRIPS Agreement, not opening or renegotiating this agreement. - SUNS5233

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