Letter from Jim Murray, Director fo the European Consumers' Organisation, to Rockwell Schnabel from the Diplomatic Mission of the US to the EU

His Excellency Rockwell Schnabel
Diplomatic Mission of the US to the EU
Boulevard du Regent 27
B - 1000 Brussels

Ref. JMU/dfo/01200314/go
9th January 2003

Dear Ambassador,

I write on behalf of BEUC, the European Consumers Organisation, to express our dismay at the position taken by the United States during the recent negotiations in Geneva on access to medicines. I refer in particular to the US attempt to limit any agreement to a few specified diseases but we have wider concerns regarding the US position on other issues also.

We disagree with your position, first and foremost on grounds of substance. We also think it will damage the entire WTO negotiation process itself.

I will set out our concerns under four main headings: The restriction of the scope of the Doha declaration The uncertainty regarding vaccines and medical devices The implementation of the TRIPS agreement and the Doha declaration.

The future of the WTO process

1 The Restriction of the Scope of the Doha Declaration

In the recent Geneva negotiations, the US (and some others) insisted on limiting the scope of any agreement to a few specified diseases including HIV/AIDS, TB and malaria. The US position was the main factor in the failure to reach agreement within the original deadline.

We strongly disagree with the US position on this point, for the following reasons:

The TRIPS agreement itself allows "compulsory licensing" under certain circumstances. It was clarified in the Doha Declaration that developing countries with a domestic manufacturing capacity can make full use of these provisions in proper cases without any limitation or restriction to specific diseases for medical products, treatments or devices. The Doha agreement acknowledged that an expeditious solution should be found for countries without a domestic manufacturing capacity to avail of the same possibilities in similar circumstances. There is therefore no reason to restrict the scope of the declaration to a few specified diseases, particularly in view of the commitment in Doha to interpret and implement the TRIPS agreement "in a manner supportive of Members' right to protect public health and, in particular, to promote access to medicines for all".

(In passing, I assume that the United States does indeed accept that the original TRIPS exceptions are not restricted to a few specific diseases. It would be helpful to be reassured on this point.)

The Doha Declaration acknowledges that each Member has the right to determine what constitutes a national emergency or other circumstances of extreme urgency. How can this be reconciled with any attempt to limit the scope of the agreement to some diseases and not others?

(Does the ability to define what constitute a national emergency only apply to countries with a domestic manufacturing capacity? Art 5 (c) of the Doha Declaration states that each WTO member has the right to determine what constitutes a national emergency or other circumstances of extreme urgency.)

2 The Question of Vaccines

The draft for agreement in Geneva (the "Motta text") contained no explicit reference to vaccines and medical devices. It seems, although I would be delighted to be corrected on this point, that the US is happy to leave open the possibility of arguing later that they would not be covered by the eventual agreement implementing the Doha declaration. We believe that such a position is wrong and altogether inconsistent with the clear terms of the Doha declaration. We cannot see how this restriction can be reconciled with the TRIPS agreement itself, which does not exclude these from its permitted exceptions. We ask therefore that the US should support the inclusion of vaccines and medical devices with other medicines in the implementation of the Doha declaration.

3 The Negotiation Process

We have a number of concerns here regarding the position of the US. Some of these concerns go back some time but they are coherent.

On balance, BEUC supported the Uruguay Round. We welcomed the Marrakech agreement but we had reservations about the TRIPS agreement. We said in 1994 that the agreement that could have adverse effects on access to medicines in developing countries. We feared that the agreement might be used to "pressurise developing countries to give priority to enforcing intellectual property rights when they have difficulty securing basic living conditions for their citizens". We hoped nonetheless, and indeed we were assured, that developing countries would benefit from some of the exceptions in the TRIPS agreement, such as those in Article 31. We did not realise that the US administration and industry (among others) would exert such political, diplomatic and economic pressure over the years to promote a restrictive interpretation of the agreement and to dissuade developing countries from availing of the provisions of the agreement that were designed for their benefit. (The fact that this pressure did not always work is beside the point.)

It seems now that similar pressure is being applied currently on a bilateral basis to persuade developing countries to accept a restrictive implementation of the Doha declaration and to dissuade them from availing fully of the provisions of Par 4 of the declaration.

Whatever international agreements may say, powerful economic and political interests can in very large measure determine how they are interpreted, implemented and applied afterwards in practice. To mitigate this factor, the current negotiations should give developing countries clear, unambiguous and ample freedom of manoeuvre to access the medicines that are needed (among many other things) to save the lives of millions. We therefore urge the US to support a much wider, simpler and clearer implementation of the DOHA declaration.

4 The Future of the WTO Process

As previously mentioned BEUC supported the Uruguay Round on balance. We will consider the outcome of the current round on its merits but in doing so we must take account of the actual effects of the Uruguay Round - including the efforts to prevent developing countries from availing of provisions of the TRIPS agreement that were designed for their benefit. Whatever its original intention or meaning, the TRIPS agreement was (mis)used and (mis)applied in the interests of rich countries and powerful political and economic forces. How can we ensure that that any new agreement will be treated differently?

We must also take account of the extent to which powerful WTO Members keep faith with their agreements. Here we cannot see how the current US position can be reconciled with the Doha declaration, to which the US previously agreed. To take only one possible example how can the US position be said to interpret and implement the agreement in a manner supportive of WTO Members' right to protect public health and, in particular, to promote access to medicines for all?

If the outcome of the current discussions on the paragraph 6 of the Doha declaration on TRIPS and Public Health does not keep faith with the original TRIPS agreement and with the DOHA Declaration, why should we trust any agreement that might be reached in the current global negotiations?

Our main concern here is the substantive one of access to medicines. We also point out however that a bad outcome to the current negotiations on the Doha declaration would deal a heavy blow to any possibility of gaining sufficient public support within the EU for the current global round of trade negotiations.

Our current concerns are by no means confined to the United States and I enclose for your information a copy of a letter written to Commissioner Lamy in the course of the negotiations in Geneva. (We will also be responding to the Commission=92s recent announcements.) We write this letter to you regarding the position of the United States and we would welcome your response to the detailed points that we have raised.

I remain Ambassador,

Yours sincerely

Jim Murray,
The European Consumers' Organisation
Avenue de Tervuren 36, bte 4, B-1040 Bruxelles,
Tel: (32-2) 743.15.90,
Fax: (32-2) 740.28.02

Return to: CPTech Home -> Main IP Page -> CPTech Page on WTO -> Paragraph 6 Page