TRIPS consultations on implementing Doha recessed

Geneva, 29 Nov (Chakravarthi Raghavan) - The TRIPS Council chair, Amb. Eduardo Perez Motta of Mexico is to hold ‘further consultations’ next week on implementation of paragraph 6 of the Doha declaration on TRIPS and Public Health, after the African group Friday in effect said “enough is enough” over discussions for solutions to implementing the para 6 of the Doha Declaration, 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 of the Doha declaration on TRIPS and Public Health.

The African position was set out in a 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.

“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 Ms Amina Chawahir Mohammad at the meeting of the TRIPS Council Friday afternoon in a statement for the African Group.

The decision of the African group was reached after an assessment by them in the light of the US moves to restrict the scope of any decision to implement para 6 of the Doha declaration to epidemics as a result of three specific diseases (HIV/AIDS, TB and Malaria), Japan’s call to exclude ‘vaccines’, and the EC’s 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 one or the other particular interests of the big pharmaceutical TNCs, and together making sure that the Doha declaration about available flexibilities 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 United States, 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 criticised by the developing countries, and civil society groups, for reflecting the US, and big PhRMA positions in the wording of his draft decision of 24 November, and the changes he introduced earlier this week.

The TRIPS Council session and its consideration of this issue are being ‘recessed’ for members to reflect and decide on a process for implementation of paragraph 6 of the Doha Ministerial Declaration to enable countries with no or inadequate manufacturing capacity to use the available flexibilities of the TRIPS, including compulsory licensing to meet public health problems.

According to trade diplomats, the US (in promoting the interests of big PhRMA) has been attempting to narrow down the scope and remit of any decision to implement paragraph 6 of the Doha Declaration 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 TRIPS for compulsory licensing, conditions in effect that will reflect the EC position in the dispute it brought against Canada to prevent use of the ‘limited exceptions’ in Article 30 on generic drugs, but lost its case before the panel.

With the US trying to limit the recourse to the three specific diseases, Japan trying to exclude ‘vaccines’, and the EC placing such restrictions that no developing country generic producers would supply or export to other countries, the African group decided to call a halt.

In the statement at the TRIPS Council, and 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,” Ms 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 who supported the African stand viewed the Motta text as narrower than the Doha declaration, a statement by the US envoy, Amb. Linner F. Delly 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 is to have contacts with delegations next week and hopes to have a draft to put to the TRIPS Council, in time for its submission of its recommendations to the General Council meeting scheduled for 10-12 December. The TRIPS and the General Council have been given an end December deadline.

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 majors in recent days also sought to divide the Africans themselves, and all this has now become counter-productive. – SUNS5246

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