WTO talks on TRIPS and Public Health remain stalled

SUNS Development Monitor #5273
January 30, 2003

Geneva, 29 Jan (Chakravarthi Raghavan) - Talks have been resumed at the WTO on implementing para six of the Doha declaration on TRIPS and Public Health, where an end December deadline has been missed at the General Council. The General Council is holding a session on 10-11 February, when the issue is bound to come up, and the TRIPS Council will have an opportunity to report.

At the informal meeting of the TRIPS Council on Tuesday (28 Jan), the EU's "compromise" proposal to implement para six of the Doha declaration on TRIPS and Public Health, was introduced and explained by the EC ambassador, Mr. Carlo Trojan, who also answered a list of questions by South Africa, and Morocco for the African Group making clear the group is yet to consider and take a position on the proposals.

Amb. Eduardo Perez Motta of Mexico said he will be reconvening the meeting on 5 February, by when it is hoped the African Group would discuss and take a position.

The WHO itself, both Dr. Brundtland, and her successor-to-be, Dr Jong Wook Lee of South Korea, have said that the scope of diseases should not be narrowed.

The United States at the meeting Tuesday did not commit itself or make its views known on the Lamy compromise, and gave no indication that it would be changing its unilateralist approach. While in December, it had announced a moratorium on disputes against those countries invoking the Doha declaration and issuing a compulsory licence for drugs for HIV/AIDS, Tuberculosis and Malaria, the actual terms of the 'moratorium' in a notification to the WTO, showed it was even more circumscribed.

At Tuesday's meeting, while Morocco for the Africans said the group is yet to discuss and take a position, and South Africa posed a number of questions, Kenya, which last year had been coordinating the group on this issue, said they would go by the 16 December text.

The EC compromise is in reality no more than what had been suggested in the final days of the December consultations, at the green room meetings convened by the WTO head, Dr. Supachai Panitchpakdi, and which was turned down by the developing countries.

The EC compromise, floated by the EC Commissioner, Pascal Lamy, in January, says in a footnote, that "this (public health problems recognized in para 1 of the Doha declaration) covers at least HIV/AIDS, malaria, tuberculosis, yellow fever, plague, cholera, meningococcal disease, African trypanosomiasis, dengue, influenza, leishmaniasis, typhoid fever, typhus, measles, shigellosis, haemorrhagic fevers, and arboviruses. When requested, by a Member, the World Health Organization, 'shall give' its advice as to the occurrence in an importing Member, or the likelihood thereof, of any other public health problem."

According to trade diplomats, in response to questions, Trojan said that the WHO's advice (with the WHO mandated to provide an advice) is to be 'non-binding' on the member seeking it!

This would imply, for example, that if country 'A' in Africa issued a compulsory licence on an European supplier, the EC may ask the WHO's view, whereupon the WHO must provide the advice, but the EC need not be bound by it - so to say three layers of judgements over the health authorities of country 'A' in Africa and their perception of a public health problem within their country!

In an interview to the Paris newspaper, 'Liberation', (published by the paper in its issue dated 10 January, under the heading, "The European Union would like to give itself a good conscience," and distributed via internet list server, by the US-based international NGO, Consumer Project for Technology) the WHO Director, German Velasquez, had said that the proposal of the EC to bring in the WHO was all the more surprising since the WHO had been pushed aside in the informal consultations at Sydney in November, and at Geneva in December. Pascal Lamy, he noted, had never sought the WHO views on this matter. "If he had done so, he would have known our position is diametrically opposed to his," the Liberation quotes Velasquez as saying.

"It is not the place of the WHO to define a limiting list. The national authorities of developing countries are in a better position to identify public health priorities. To play this game would be a step back, in view of the results from Doha, which allowed countries the opportunity to define them themselves.."

In further responses to the French newspaper, Velasquez is also quoted as agreeing with the questioner that perhaps the WHO has been set up, even if though it probably was not the intention of the EU's Trade Commissioner. "If we say,'yes, the list is fine' or 'no, such and such a disease should be added,' then we are entering into the logic of a limiting, yet global list, when the topic is much more complex and different - unique diseases existing on every continent."

The French paper also cites Velasquez as saying, in response to other questions about the European offer, that Europe supports the American proposition, but now would like to have a good conscience by leaning on the WHO for support to sweeten the pill. As for the US guarantee that it would not press charges against the developing countries that import the generics drugs, "this does not solve the problem; there is already a de facto moratorium, one imposed by international opinion, which is very sensitive to this question."

At Tuesday's TRIPS Council informal meeting, the US did not commit itself or make any comments on the EC proposal, but spoke of a need for a speedy multilateral solution, and of the US unilateral moratorium as a useful first step, but not a final solution. Canada also said it was refraining from raising disputes, and in effect seemed to attempt to pressure the developing countries to agree.

At the Davos World Economic Forum meeting, the South African trade minister, Mr. Alec Erwin, had held some highly publicised meetings with big pharmaceutical companies and the WTO head Dr. Supachai. After the meetings, Supachai had expressed some optimism about a compromise being near, and so did Erwin, though they did say "we are not there yet".

The series of questions posed by the South African trade diplomats here at the informal TRIPS meeting however led to some disquiet among other Africans, several of whom said they had asked South Africa whether its questions implied it was willing to discuss the 'scope' issue, but that they had been told that South Africa was merely trying to understand the EC move.

After Morocco's statement that the African Group would comment later, Brazil and China made clear they could not accept the proposal because it narrowed down the scope of paragraph 1 of the Doha declaration. India, Argentina, Colombia, Peru and Thailand, Bangladesh for the LDCs, also spoke, but perhaps less forthrightly and in a more nuanced way.

Kenya, which has been the African coordinator, speaking for itself, said that they should not be discussing the scope of diseases, but rather on the implementation of para six of the Doha Declaration. India expressed itself in favour of a multilateral solution, to which all members could subscribe (in a reference to the unilateral US policy announced at the end of December, and circulated by the US officially via the WTO on 14 January - in effect restricting the scope of the moratorium even more). On the EC proposal, India said that it had listened to the views of South Africa, Kenya, Peru, China, Bangladesh and Brazil, and added: "Our position is similar to theirs. We believe that the 16 December draft is a balanced text arrived at after extensive negotiations and would be a better basis for a constructive solution to this issue."

Several of the Third World diplomats, speaking non-attributively, complained about the media barrage and red herrings being drawn by the PhRMA and their promoters in industrial countries, by the talk of Third World country governments trying to expand the Doha declaration to get compulsory licences for all kinds of pharmaceutical products and the prospects of their 'misusing' the TRIPS Art 31. f to compulsory licence 'viagra' (purported life-style drug to combat male impotency).

The diplomats and public health civil society groups point out that there is nothing in TRIPS that can prevent a country with a pharmaceutical capacity to issue a licence for any patented drug even now.

The Doha declaration's para six is not about interpretation or reinterpretation of the TRIPS 31.f, but how countries with no or insufficient manufacturing capacity, can be enabled to make use of their rights and the flexibilities under TRIPS, to get essential medicines at affordable prices for tackling public health. The scope of that Declaration, set out in para 1, was a text negotiated with some difficulty, before and at Doha, and in an effort by all to reach a compromise.

And countries and governments using para 6 of the Doha declaration are likely to act responsibly, taking full account of the effects of their actions on investors. To use the viagra issue to attack the Doha compromise and dilute and restrict it, in an attempt to pander to the interests of the big PhRMA and their profits, is to strengthen hands of those campaigning against the WTO, and bring to a new low, the already low credibility of the WTO.

The major industrial nations, and many others, routinely issue compulsory licences, and not merely for public health reasons, and or issue licences without compensation on grounds of countering anti-trust behaviour of holders.

A recent example in the US (reported in USA Today), has been of the action of the Federal Trade Commission's enforcers recommending initiating a lawsuit to take away the patent rights for clean-fuel patents of Unocal on anti-trust grounds. According to the report, Unocal, with other major oil refiners (including ExxonMobil) had formulated clean fuel standards, which could be fulfilled only by using a patent process of Unocal. The latter had applied for a patent, without disclosing it to the standard setting meeting. ExxonMobil and other major oil firms had said that they would end up paying royalties to Unocal, and that refining fuel in other ways would be even more expensive. A federal judge who had ordered the oil firms to pay the royalties, has now delayed the order, pending the outcome of the FTC probe.

Perhaps there is now a case for governments of developing countries, both those issuing patents, as well as those in the health administrations allowing marketing, to apply more strictly the TRIPS and its stipulations for the grant of a patent for technological processes or products, namely "they are new, should involve an inventive step and are capable of industrial application." These combined with a requirement that alleged new drugs should be tested, not against placebos as now, but drugs now being used, and whether they are more efficacious.

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