US opposed to moves to address public-health concerns about TRIPS

The US is blocking developing countries’ efforts to address the negative impact of the TRIPS Agreement on access to medicines by attempting to restrict ongoing discussions in the WTO to only the HIV/AIDS problem.

by Cecilia Oh

THE US position was put forward at a one-day informal meeting on 25 July of the WTO’s TRIPS Council to discuss the TRIPS-and-public-health issue. This meeting was a follow-up to the special meeting on the same theme on 20 June.

The US said that it is opposed to proposals to have Trade Ministers in Doha affirm an understanding that the TRIPS Agreement does not prevent countries from taking measures, such as compulsory licensing and parallel imports, to ensure access to medicines and protect public health. Switzerland has also made it known that it will not support such a proposal.

This hardline approach has infuriated the developing-country negotiators, who say that the US is trying to stall their efforts to start a process of identifying key issues for a decision by Trade Ministers at the Doha WTO Ministerial Conference in November.

Identification of issues

During the 25 July meeting, the majority of developing countries asked the TRIPS Council Chairman to initiate a process to identify issues to be included in the Doha Ministerial Declaration. At this meeting, the Africa Group and some other developing countries from Asia and Latin America called on all delegations to ‘set out in specific terms what they would want to see done in the period leading up to Doha, and at Doha, regarding the TRIPS Agreement and its impact on access to affordable medicines’.

The developing countries (including those that had earlier submitted a joint statement to the TRIPS Council at the Special Discussion on TRIPS and Public Health on 20 June) put forward their position at the 25 July meeting in a joint statement read on their behalf by Tadeous Chifamba of the Zimbabwe Mission, which currently chairs the Africa Group in the WTO. (The text of the statement is reproduced in the following article.)

The statement identified six elements on TRIPS and public health which the developing countries considered vital to be included in the Doha Declaration: (1) the use of Articles 7 and 8 in the interpretation of all provisions in the TRIPS Agreement; (2) the right of countries to determine the grounds on which compulsory licences may be issued; (3) recognition of compulsory licences issued to a foreign manufacturer; (4) the right to parallel import; (5) a moratorium on all dispute actions aimed at preventing or limiting access to medicines or protection of public health; and (6) extension of transition periods for developing and least developed countries.

Individual countries which took the floor and expressed strong support for the Africa Group statement included Brazil, Bolivia on behalf of the Andean countries (i.e., Bolivia, Colombia, Ecuador, Peru and Venezuela), Egypt, India, Indonesia, Malaysia and the Philippines.

Brazil, in its statement, said that there was a need ‘to structure and focus the debate on issues where there was common ground’, noting that some of these had already been identified in the Africa Group statement. Brazil also suggested the drafting of a separate Declaration on TRIPS and public health, in order to ‘demonstrate the emphasis that Members attribute to the issue’.

Norway was supportive of the call to identify elements for the Doha Declaration, while the EC said it was willing to continue discussions on the matter.

Intransigence

However, the US objected, once again refusing to acknowledge that there were legitimate concerns about the impact of TRIPS implementation on access to medicines and reiterating its view that the TRIPS Agreement afforded flexibility to countries to meet health care objectives. In this connection, the US said it was unable to understand the problems and concerns of developing countries arising from TRIPS implementation, and asked for proof that patent protection did have negative impacts on access to medicines. The US representative was reported to have said that ‘for as long as you cannot come up with concrete examples, we remain unconvinced of the problem’.

After the meeting, many developing-country diplomats expressed frustration at the US’s intransigence. A number of them said that the recent withdrawal of its dispute action in the WTO against Brazil (on the latter’s law enabling compulsory licensing for non-local working of a patent) has enabled the US to take this hardline position, as it could then use the fact of the withdrawal to support its argument that the TRIPS Agreement does not pose a problem for public health or access to medicines.

Concluding the meeting, TRIPS Council Chairman, Amb. Boniface Chidyausiku of Zimbabwe, said that he would hold consultations on the issues raised, to prepare for the next TRIPS Council meeting in September. He identified four sets of issues which would form the basis of his consultations. These were: (1) the principles and objectives of TRIPS set out in Articles 7 and 8; (2) issues related to the grant of compulsory licences; (3) parallel importation measures; and (4) a moratorium or due restraint on dispute settlement actions.

The US, EC and Switzerland raised objections to discussing the issue of a moratorium or due restraint within the TRIPS Council, on the grounds that the TRIPS Council did not have the necessary mandate to deal with this ‘political’ issue. They said that the General Council would be the appropriate forum to address the issue. On this point, Amb. Chidyausiku said he would consult with the General Council Chairman.

The following day (26 July), WTO Members met in a General Council informal consultation on TRIPS, where the US said that it understood that when developing countries called for action on TRIPS and public health, it was limited only to the question of HIV/AIDS. Sources also said that Switzerland had privately approached African diplomats to say that they would have difficulties with expanding the discussions to other diseases.

Another session of the TRIPS Council will continue the Special Discussion of the TRIPS-and-health issue on 19 September.