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GC chair to hold consultations on wide range of TRIPS issues

by Chakravarthi Raghavan

Geneva, 4 July 2001 - The chairman of the General Council, Mr. Stuart Harbinson of Hong Kong China is holding consultations Thursday on TRIPS issues as part of the Doha preparatory process and the draft Ministerial declaration.

A number of issues relating to the Trade-Related Intellectual Property Rights are in the WTO work programme as part of the mandated reviews and negotiations under the Marrakesh Agreement.

More recently, as a result of civil society concerns in the developed and developing world, over the issues of public health and high price of medicines and the human right of people everywhere for access to essential medicines and health at affordable prices, the WTO has recently taken up the issue of TRIPS and Public Health.

The TRIPS Council which held a day of special discussions in June has scheduled informal consultations on these issues of TRIPS and Public Health on 25 July, and devote another full day on 19 September to discuss these issues.

At the June meeting, a range of developing countries called for a clear understanding or clarification by the Doha Ministerial Conference on the flexibilities available to member-governments to ensure access to medicines for their public at affordable prices, including through compulsory licensing and parallel imports and other remedies, as also for interpretations or changes in TRIPS where existing provisions are not sufficient or ambiguous.

The developing countries wanted such a collective understanding to enable countries to make use of available instruments without fear of being dragged before dispute panels (and for the panels to ‘legislate’), and wanted the General Council and the Doha ministerial to act on these matters to bring some certainty and ensure that TRIPS does not come in the way of public health.

In the discussions a number of issues directly related to the public health concerns, as well as some related issues (such as bio-piracy and patenting of traditional knowledge and biotic resources of developing countries) had been raised and flagged.

Developing countries had said that the consideration of these issues by the TRIPS Council and the Doha preparatory process to take account of these and said they looked forward to the Ministerial decisions on these at Doha, and not become a part of any new round of negotiations (that may or may not be launched).

In calling for informal consultations on TRIPS issues Thursday, Mr. Harbinson would appear to have proposed a more comprehensive agenda - some directly related to the TRIPS and Public Health issues, and others forming part of the mandated reviews and negotiations in TRIPS itself.

Some developing countries said that while perhaps, Mr Harbinson had to flag all the issues to obtain, as he envisages, “a more complete picture” of the positions of delegations, there was a danger that the pressing demands of developing countries and civil society everywhere for urgent actions on public health issues may get side-tracked and rolled into wider TRIPS review issues and any new round.

This would certainly suit the interests of the transnational pharmaceutical industry which may hope thus to get the issue off the public eye, and put it on a back-burner where it could be buried.

The EC and a few others had merely wanted the Doha Ministerial meeting to have some ‘preambular’ paragraph in the Ministerial Declaration, but developing countries have said they wanted concrete decisions and understanding by the Ministers which would have some legal effect on the WTO system, including the dispute panels and the appellate body.

In outlining what he hopes to achieve in the consultations, Mr. Harbinson would appear to have said that the TRIPS issues had come up in a range of contexts, including the preambular part of the declaration, implementation, ongoing negotiations and reviews, notably the work in the TRIPS Council on geographical indications of origin, Article 27.3 (b) review of patenting of plants and animals other micro-organisms (which countries can now exclude), Article 71.1, the mandated review of implementation, and other elements of the work programme.

The GC chair has noted that a fairly wide range of issues had been raised, including the relationship of IPRs and public health or access to medicines, the negotiation of a multilateral notification and registration system for geographical indications pursuant to Art. 23.4 of TRIPS (an issue being pursued by the EC and some others), and extension of this provision to other products (than wines and spirits), an issue being pursued by a number of developing countries, so as to enable protection of these under Art. 23 of the TRIPS.

Also raised in the discussions have been the relationship of TRIPS and the Convention on Biological Diversity (CBD) and the protection of traditional knowledge.

Other issues that have been raised include non-violation complaints, the transfer of technology, including under Art. 66.2 (where developed countries are obliged to take measures to encourage their enterprises to transfer technology to the LDCs), and keeping TRIPS abreast of new technological and other developments.

This last is a reference to the US and others trying to expand TRIPS to deal e-commerce and digital and internet issues.

Mr. Harbinson hoped that as a result of his consultations it would be possible for members to obtain a more complete picture of the position of delegations on these and other TRIPS-related points which they feel should be addressed in the Doha declaration, including on the appropriate context within that Declaration and the machinery of the WTO in which action could considered.

One Third World diplomat said that on TRIPS and Public Health, as well as the issues related to the TRIPS and CBD questions there was probably a wide measure of unity and consensus among the developing countries. On some of the other issues, there were divisions within the industrialized world and generally with the developing countries and among developing countries.

Third world countries had to be careful to keep the agenda open in terms of the future, while at the same ensuring some concrete decisions at Doha on TRIPS and Public Health and related issues, in a way that there would be clear and unambiguous language and guidance to the dispute system and the secretariat. – SUNS4929

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

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