US, Swiss take hard-line on TRIPS, Public Health and Doha

by Chakravarthi Raghavan

Geneva, 26 July 2001 - - The United States and Switzerland have emerged as the two hard- liners in opposing any operative decisions at the Doha Ministerial on TRIPS and Public Health or of any ‘understandings’ or ‘interpretations’ that would enable a member-country to issue compulsory licences under Article 31 of the Agreement, except on the ground of non-use (meaning patent holder not working the patent and not agreeing to license others to produce) and abuse of patent rights.

The two agree that Art. 31 of TRIPS itself does not set the grounds on which compulsory licences can be issued, but use other provisions to restrict it further. The anti-competitive abuse of patent rights is a frequently cited ground in the US for issue of compulsory licenses, and clearly the US and the Swiss (which within the industrial world, and continental Europe, denied patents for chemical and pharmaceutical sectors for a long time, until its own industry developed) want in fact to restrict the space for developing countries and insist on such a narrow view.

This position appears to have emerged at the informal consultations at the TRIPS Council on 25 July, to prepare the agenda for the September session of the Council, when it will hold another formal plenary meeting to consider issues arising out of the discussions at the June meeting.

A group of 41 countries - the members of the African Group and several other developing countries from Asia and Latin America - had presented at the informal meeting a statement outlining their views and what they want to be done at Doha, and this included issues of compulsory licensing and parallel imports, the affirmation that nothing in TRIPS affects right of members to take actions for public health or allow parallel imports, and for a moratorium on trade disputes under TRIPS.

The consultations would appear to have showed that in terms of the Doha Ministerial and the declaration, and any decisions or understandings to be adopted, the US and Switzerland and a few others are unwilling to agree to anything more than a pre-ambular language in the Declaration, while the EU is signalling it may agree to have some operative paragraph too.

How far this is a substantive movement forward and how far it is merely tactical aimed at lobbying support for launch of a new round with new issues (the ‘comprehensive’ or ‘broad-based’ round as it is promoted in code language of the jargon at the WTO) is not clear, and will not be until the drafting exercise begins.

As developing country trade diplomats and experts note, merely saying that TRIPS provides for ‘flexibility’ for developing countries, and such vague statements, would not avail - and may be misleading in making their public and capitals believe that something has been achieved for allowing the launch of a new round.

If not immediately, over the next couple of years, disputes will be raised, dispute panels will be set up, and, guided by a partisan secretariat and a dispute settlement mechanism, will rule to protect corporate as against public health and public interest.

The only winners would be those taking to the streets to protest at WTO and trade rules, corporate governance, and the form of ‘Globalization’ promoted, which the International Herald Tribune columnist, Mr. William Pfaff, has identified as no different from colonialism.

As repeatedly iterated at the meetings, and in the corridors so far, as far as the US and Switzerland (both home countries of the major pharmaceutical transnationals) are concerned, the only TRIPS and public health issue is in relation to the AIDS pandemic, and that too as part of a wider and integrated approach.

For the informal consultations on 25 July, the secretariat had prepared a checklist of issues.

After discussing them, the informal meeting is said to have agreed on focussing at the September meeting on the objectives and principles set out in Articles 7 and 8 of the TRIPS Agreement, compulsory licensing and parallel imports.

The WTO and its media office provided no official briefing on the outcome.

The TRIPS council chair, Amb. Boniface Chidyausiku of Zimbabwe told the meeting that he would hold consultations to see “whether we can come up with a framework for capturing the progress” in the work so far, which could be discussed and filled in during the September discussions.

Chidyausiku is also to hold consultations with the Chairman of the General Council on the issues raised about the relationship between the work of the TRIPS Council and that in the GC’s preparatory process for Doha on TRIPS and access to medicines, including on how TRIPS Council work could feed into the Doha preparatory process.

The issue of the Doha declaration calling for a moratorium, found the US, the EU and Switzerland opposed, but with developing countries in favour.

The issue is to be pursued in the context of the Doha Declaration, and the informal consultations at the GC.

The WTO and its media office provided no ‘official’ briefing on the TRIPS informal meeting.

But trade diplomats said that there were intense discussions, with strong views on both sides expressed in some of the smaller group consultations, with the US in a ‘state of denial’ and insisting that they were even unable to understand the problems raised about TRIPS and public health by the developing countries.  The only public health issue, as far as the US is concerned, is about HIV/AIDS, and even here an integrated approach is required.

The US also claimed that there was no evidence that TRIPS hampered access to drugs. At the same time, the US said that if parallel imports were allowed, there would be ‘leakage’ of cheap drugs from the poor countries to the rich.

This is also a view being promoted by pharmaceutical companies, and even parts of the US system promoting differential and tiered price systems as a solution.  But those making such assertions, with all their sophisticated methods of data collection, are unable to cite data about the extent of this, beyond some odd anecdotal claims.

During the informal TRIPS Council meeting, the secretariat also attempted to respond to the criticism (made in a statement by Zimbabwe on behalf of the 41 members) about the secretariat activities providing ‘interpretations’ of the TRIPS Agreement and suggesting that the should strive to be objective.

At the UN regular weekly briefing Friday, a WTO media officer acknowledged there had been some objection, but that the Director of the Division had explained these were old documents.

According to some trade diplomats, the Director of the TRIPS division reportedly said that some of the views he provided at a WHO informal consultations, were before the members had taken some different views on compulsory licensing etc, and that the secretariat currently advises in response to inquiries that the membership is divided. As for the information on the web pages of the WTO, Otten reportedly said, it was made clear there that this was not an authoritative interpretation, but merely background.

“Our misfortune,” he reportedly said, “that a major power has commended it.”

Trade diplomats however noted in private that the background information and the ‘unofficial’ views about the TRIPS, posted on the official website of the WTO, in fact were related to the controversies that began publicly more than a year ago, if not earlier. – SUNS4946

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

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