CPTech Letter to H. E. Sergio Marchi, Chairman of the WTO General Council and Dr. Eduardo Perez Motta, Chairman of the TRIPS Council

13 December, 2002

Ambassador H.E. Sergio Marchi
Chairman, WTO General Council

Ambassador Dr. Eduardo Perez Motta
Chairman, TRIPS Council

Dear Ambassadors Marchi and Motta:

This is a note on a narrow issue. In the negotiations over "solutions" to the export of medicines, it is important to have clarity on a particular point. Will the "system" that is being negotiated prejudice the ability of a member country to separately pursue an Article 30 solution based upon the approach recently adopted by the European Parliament in Amendment 196 to its Medicines Directive?

I have separately raised this issue with the WTO Secretariat staff and did not receive a satisfactory answer. It is clear from some proposed texts that the solution would not prejudice approaches based upon 31.f, which in any case are limited, or other approaches in Paragraph 5. But paragraph 5 of the Declaration does not address Article 30. It would be quite easy to clarify the relationship between the proposed paragraph 6 solution, and a country's options to address exports unilaterally under Article 30. I note here that Canada did use Article 30 to authorize exports, despite opposition from the European Union, and did win the right to export generic medicines in a panel decision. So clearly there exists more room in a panel on some issues that a country can achieve with complete consensus.

Some legal advisors to some countries, as well as the WTO Secretariat technical staff, have not show much appreciation for the dangers of ambiguity, in terms of the potential for bilateral pressure on the weakest countries. We now know that countries can even claim that the clear language of the November 2001 text of the Declaration was a "mistake" in terms of disease coverage. So maybe we can be very clear what developing countries give up if they accept a highly limited procedure for exports of a handful of products. Do they give up the right to do what Canada did on the export issue, and seek panel approval of an Article 30 approach that is less restrictive? Compare here the issues of the scope of diseases (all diseases), technologies (any), legal mechanisms (no licenses, no prior notification), royalties (none from the exporter) and safeguards (none) that are contained the Canadian law authorizing exports under Article 30.

Thank you,

James Love
Consumer Project on Technology

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