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Differences unresolved on implementing TRIPS and Public Health

Geneva, 25 Nov (Chakravarthi Raghavan) - Intense series of consultations by the chairman of the TRIPS Council on Sunday and Monday do not appear to have resolved differences and move towards a solution to implement Paragraph 6 of the Doha Ministerial Declaration on TRIPS and Public Health.

This para has mandated the TRIPS Council and the General Council to find an expeditious solution to enable those developing countries who have no or insufficient manufacturing capacity to make effective use of the compulsory licensing provisions of the TRIPS Agreement.

Informal consultations by the chair of the TRIPS Council, Amb. Edouardo Perez Motta of Mexico, had been held through Sunday and on Monday - within a smaller group of key countries, as well as in bilateral and plurilateral meetings, and informal meeting in the evening at the level of ambassadors. Another meeting is set for Tuesday.

However, these have not resolved major differences on implementing para 6 of the Doha Declaration on TRIPS and Public Health, but has registered some retrogression, according to trade diplomats.

Meanwhile, a group of NGOs closely monitoring the talks (including the US-based Consumer Technology Project, Medicins Sans Frontier, Oxfam and Third World Network), have asked the developing countries to walk away from the talks rather than agree to such ‘poisonous’ proposals, riddled with conditions, and with limitations and burdens to make the Doha declaration unworkable.

Motta had put forward on 24 November a draft decision, which was discussed on Sunday among a smaller group of key countries, where it became clear that there were some sticky points.

At the informal TRIPS council meeting Monday morning, there was no discussion on the text, but on some of the key elements, and the differences that need to be resolved.

On the issue of eligible importing countries - where some like Korea, Singapore or Hong Kong China were not willing to rule themselves out - Motta has been also holding bilateral discussions.

In the wider group, the US and the EC wanted a footnote, specifying the countries who would not be eligible to use the para 6 of the Doha declaration, and the decision, to use compulsory licensing to issue licences to a third country and import. The ‘high income’ countries, in particular Korea, were not agreeable.

The definition of a ‘pharmaceutical product’ in the draft decision had eliminated mention of ‘vaccines’ (included in an earlier Motta elements paper), and merely said: ‘it is understood that active ingredients necessary for the manufacture and diagnostic kits needed for its use would be included.’

At an earlier consultation, on the basis of Motta’s elements paper, Japan had said the term ‘pharmaceutical product’ should not extend to vaccines. The African group, as well as other developing countries like India had taken the position that the term ‘pharmaceutical product’ included vaccines, but that since an objection had been raised, to avoid any disputes in the future there has to be a specific understanding that vaccines were included. The EC had also taken the position that the term ‘product’ included vaccines.

At the discussions on Sunday and Monday, a number of these countries including the EC said the term should be put back into the new draft. Japan and the hardliners who had originally raised the issue did not object.

On the waiver and the amendment of Art.31 (f) issue, a number of developing countries, China, Malaysia, Sri Lanka and others said their own preferred solution was for an agreed interpretation of Art.30 to enable a limited exception to be given by a county.

The African group did not favour the Article 30 route, but wanted an amendment to Article 31 (f).

The EC had earlier sought to put conditions on the waiver. But a secretariat legal opinion backed the view of others that while conditions could be put on waiving obligations, none could be put on ‘rights’ nor on third countries who did not seek the waiver.

Thereupon, the EC wanted a waiver plus an Art 31 (f) amendment, incorporating in the amendment the very restrictive conditions it had sought to put through the waiver, and for both a waiver and amendment to be agreed to as part of the solution.

A number of developing countries however would not agree to such an amendment, while hardliners like the US and Switzerland wanted to see how the ‘waiver’ worked, and then look at the amendment issue after three years. Also, a number of developing countries who could be ‘eligible exporters’, made clear that beyond a requirement for ‘transparency’ purposes they were not prepared to undertake an extensive ‘policing’ work on the end-use or diversion of the compulsorily-licensed product exported by them.

The statement from the NGOs said developing countries should walk away from the negotiations on exports of health care products (paragraph 6 of the Doha declaration), if the proposed “solution” (as reflected in the draft of November 24, 2002) is riddled with limitations and burdens, creates new norms for WTO intrusions into national sovereignty, and reduces the stature and importance of the Doha Declaration on TRIPS and Public Health.

NGOs charged that the US, EU, Canada, Switzerland and Japan had escalated their efforts to make the solution “more restrictive, more burdensome, and more problematic in terms of precedent, and have demonstrated bad faith” in addressing the problems set out in paragraph 6. In other words, the solution is not going to work. The system proposed by the rich countries is worse than the status quo, the NGOs said.

On some issues, such as the scope of diseases, there can be no compromise, the NGOs said. How can any WTO member justify the exclusion of a particular disease from the solution? Either every country has effective and practical methods to protect the public health and “in particular, to promote access to medicines for all,” called for in Para of the 4 declaration, or the WTO is a place where crude compromises on public health are hammered out disease by disease, product by product, country by country, and patient by patient,” the NGOs said. – SUNS5243

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