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Trade: US trying to limit Doha public health declaration

Geneva, 5 Mar (Chakravarthi Raghavan) -- As the WTO Council on TRIPS began meetings to follow up on the Doha Ministerial Declaration on TRIPS and Public Health, there are indications that the United States is trying to limit the benefit of that declaration to many developing countries who do not have the production facilities themselves, but might compulsorily license production abroad.

The Doha declaration, which the United States had tried to weaken but failed, recognized (in para 4) that the TRIPS Agreement did not and should not prevent Members from taking measures to protect public health, and affirmed "that the Agreement can and should be interpreted and implemented in a manner supportive of WTO Members' right to protect public health and, in particular, to promote access to medicines for all."

In the light of this, the declaration reaffirmed the right of WTO members to use to the full the provisions of the TRIPS Agreement which provide flexibility for this purpose.

It further recognized (para 5) that in applying customary law and interpretation of public international law, the Provisions of the TRIPS "shall be read" in the light of the object and purposes of the Agreement, as expressed in its objectives and principles, and that

The declaration also went on to state (para 6): "We recognize that WTO members with insufficient or no manufacturing capacities in the pharmaceutical sector could face difficulties in making effective use of compulsory licensing under the TRIPS Agreement."

The Ministers added in the same paragraph: "We instruct the Council for TRIPS to find an expeditious solution to this problem and to report to the General Council before the end of 2002."

There was a view at that time that the very small (Caribbean and other countries) or the sub-Saharan African countries face such a problem. However, it is now clear that even a country like Brazil, which has been producing its own 'cocktail' of anti-AIDS drugs, does not have the facility to produce the bulk basic drugs, and imports it from India. It was this recognition by the Brazilian Health Minister Serra that led to the strong support of Brazil to the Indian and African stand on this issue in the runup to Doha and at Doha, Brazilian sources have said.

The TRIPS Council, under the package agreement relating to the trade negotiations under the work programme and other issues (like implementation and the TRIPS declaration) has been directed by the General Council to undertake this work as a priority.

One of the prominent ideas that were canvassed in the runup to and at Doha, and which has now been referred to the TRIPS Council is the right of a country without facilities to issue a compulsory licence to a producer in another country for export by that producer to the country issuing the compulsory license.

In this regard, the US administration (which is promoting the interests of its transnational pharmaceutical industry which found itself unable to resist the tide at Doha) is reportedly canvassing several conditions and restrictions that could be placed in respect of the decisions to be taken under para six of the Doha declaration.

While it has not yet formally proposed these measures, a coalition of public interest US NGOs that met with the office of the United States Trade Representative, have advised other NGOs campaigning on this matter that the administration is considering several ideas "to dramatically limit the scope and effectiveness of the post-Doha solution."

These US ideas apparently include:

Most of the conditions being weighed by the US appear to be against the spirit and letter of the Doha declaration, according to the US NGOs, and appears to be part of an effort to preserve the right of the US patent holders to make profits off a narrow spectrum of rich elites in developing countries.

Seemingly, the EC is taking a slightly more forward position, namely, of willingness to allow exceptions under Article 30 of TRIPS, though it does not seem to go far enough.

The US end-game presumably is that if the issue somehow can be kept without actual decision for a while, the public interest of the NGOs and others who propelled it will cool and become diverted to some other issue, and the proposal can die a natural death in the WTO committees.

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