DEVELOPING COUNTRIES’ RESPONSES TO TRIPS SECTION IN WTO’S DRAFT MINISTERIAL DOCUMENTS
Two key documents in preparation for the WTO’s 4th Ministerial Conference are the draft Doha Ministerial Declaration and the Draft Decision on Implementation-Related Issues and Concerns, which were both presented on 26 September to WTO Members. Both of these documents contain sections that deal with the TRIPS Agreement. Developing countries have expressed dissatisfaction with the manner in which the TRIPS-related issues have been addressed in the draft texts.
This report provides a brief summary of developing countries’ responses to the TRIPS sections in the draft texts. Also attached below is a proposal from the Africa Group for substantial changes to the TRIPS sections of the texts. This proposal has been formally submitted by Zimbabwe, on behalf of the Africa Group, and was circulated by the Chairman of the General Council to the WTO Members during an informal consultation on TRIPS held on Sunday, October 7, 2001.
It has now been announced that the second version of the Ministerial Declaration and of the Implementation Decision are expected to be ready only towards the end of next week. There is also supposed to be a third document for Ministers to approve at Doha: a declaration on TRIPS and public health. There has been intensive consultations by Members on this document. The General Council Chairman has informed WTO Members he would be prioritising work on this issue. He was also reported to have said that it was still not completely clear that there would be a separate Ministerial Declaration on TRIPS and Public Health. It is now well known that there has been little progress in the consultations on the content of such a declaration.
REPORT ON TREATMENT OF TRIPS IN THE WTO DRAFT TEXTS AND THE RESPONSES OF DEVELOPING COUNTRIES
1. Treatment of TRIPS in the draft Declaration and draft Implementation Decision
The draft text for the 4th Ministerial Declaration contains a total of 4 paragraphs (paragraphs 14-17) devoted to the TRIPS Agreement. Two paragraphs relate to the negotiations on geographical indications: para 14 signaling agreement to complete negotiations on the establishment of a multilateral system of notification and registration of geographical indications for wines and spirits; and para 15 referring to possible negotiations on extension of the protection of geographical indications to additional product areas. Paragraph 16 appears to be a reference to the TRIPS Council’s work programme on the review of Article 27.3(b) relating to the issue of patents on life forms, although it makes no reference to the provision itself. The final paragraph (paragraph 17) requires the TRIPS Council to report on the progress of its work to the General Council at the end of 2002, and to the fifth Ministerial Conference for a decision on further action.
In the Draft Decision on Implementation-Related Issues and Concerns, issues are categorized in 2 annexes: Annex 1 for immediate decisions and Annex II for issues, which will be developed into proposals for Ministers’ decision at the Ministerial Conference. In Annex I, reference is made to the implementation of Article 66.2 of TRIPS, and in Annex II, there is a paragraph on the issue of non-violation complaints.
2. Developing Countries Express Disappointment with how TRIPS is treated
Many developing countries (in their responses to the draft texts during the informal General Council meetings of 2-3 October 2001) expressed great disappointment with the treatment of TRIPS in the draft texts. Many developing country proposals relating to TRIPS, which were submitted as part of the preparatory process for the Seattle Ministerial Conference, and which have yet to be addressed, do not appear in these texts.
As the Ambassador of India to the WTO, Amb. S. Narayanan, put it: “The language relating to TRIPS gives the uncomfortable impression that there is no serious attempt to bring issues of importance to developing countries into the mainstream of the work programme”.
Representing the Least-Developed Countries (LDCs) in the WTO, Ambassador Ali Mchumo of Tanzania, said of the TRIPS sections in the draft texts; “In our view it is basically empty of content, ignoring the evidence of problems generated in the recent years and the need to resolve these many problems”. He made a set of detailed proposals to amend the draft declaration’s section on TRIPS to add the following points: (a) On Article 27.3b, Ministers should agree that all living organisms and natural processes shall not be granted patents; and it is clarified that Members can select their own sui generis system that recognises traditional knowledge and farmers’ rights and that TRIPS should not be interpreted in a manner that endangers food security; (b) exclusion from patentability shall be extended to medicines; (c) Ministers affirm that nothing in TRIPS prevents Members from taking measures to protect public health; (d) Under Art 66.2, developed countries shall put into effect meaningful incentives for technology transfer and additional measures (other than incentives) should also be identified and implemented. (e) the transitional period for LDCs in TRIPS shall be extended so long as they remain LDCs.
Bangladesh’s Ambassador, Dr Toufiq Ali, spreaking on behalf of LDCs on the implementation document, said problems arising from TRIPS are of paramount concern to LDCs and other developing countries. “We have been voicing these concerns at various for a, including the General Council and the TRIPS Council. We find that these serious concerns have not been dealt with. This gives rise to a very serious situation, as our countries have insisted that the concerns are dealt with urgently.” He also made proposals on prohibition of patents on life forms, extension of exclusion from patentability to medicines, extension of transition period for LDCs and the need for incentives for technology transfer.
The Ambassador of Jamaica to the WTO, Amb. Ransford Smith, said: “We believe that there are a number of issues of interest to developing countries that need to be added. ... the mandate in paragraph 16 for the Council to give ‘due attention’ is too weak. ... We also consider that this Declaration should have a reference to TRIPS and public health, even it if were elaborated elsewhere”.
Kenya’s delegate, Nelson Ndirangu, listed some of the issues of interest to developing countries which had not been adequately addressed in the draft texts. He said that; “... we share the disappointment by a number of developing countries about the lack of substance or progress reflected therein. There has been public outcry about the negative effects of TRIPS on prices of medicines and other essentials, about biopiracy and the patenting of life forms, about the threats to food security and farmers livelihoods. This section must be revised to take these concerns into account. There should also be a link between this draft and the separate declaration on TRIPS and public health.”
The delegate of Zambia also called the draft declaration’s section on TRIPS “extremely disappointing” and proposed many additions to the text in relation to Art. 27.3b on biodiversity, Article 66.2 on technology transfer and Art. 71.1 on the review of the agreement.
3. The Africa Group proposal for amendment of draft Doha Declaration
A major development was the submission of the Africa Group of WTO Members of a set of detailed proposals which the Group wanted to add to the Ministerial Declaration. The paper of the Africa Group was given to the General Council chairman, and the paper was circulated to WTO Members during an informal consultation on TRIPS on Sunday, October 4, 2001. The proposal contained 6 categories of issues and proposals for alternative language on TRIPS in the draft texts; as follows:
(1) affirmation that the interpretation of each provision of TRIPS shall be guided by Articles 7 and 8 of the Agreement;
(2) immediate implementation of the mandatory obligations by developed countries under Article 66.2 of TRIPS to provide incentives for technology transfer to least-developed countries;
(3) completion of the review of Article 27.3(b) by 2002 which would clarify that patenting of life forms would be prohibited and affirming the right of each Member to determine the appropriate sui generis systems for protection of plant varieties;
(4) affirmation of the common understanding that the TRIPS Agreement does not prevent Members from taking measures to protect public health;
(5) non-application of non-violation complaints to the TRIPS Agreement; and
(6) direction to the TRIPS Council to undertake the review under Article 71.1, and to take account of new developments which necessitate amendment of the TRIPS Agreement.