[Ip-health] Re: Second draft declaration on TRIPS/health

[Khalil Elouardighi]

Re: Second draft declaration on TRIPS/health
The first option set out by the WTO is good in the sense that it includes
developing countries' broad language "nothing prevents". But by tying in
"the right of WTO Members to use, to the full, the provisions in the TRIPS
Agreement which provide flexibility for this purpose", it leaves untouched
the issue of exactly what are the public health measures provided for in
TRIPS. For instance, by not clarifying Articles 30 or 31.k, does it not in
effect leave the US free to sue India or Brazil should they export
compulsory-licenced drugs to Africa under those unclarified provisions ?

The second option (originating from the US) is more precise and thus more
protective of what it chooses to addresse. However, the bracketed wording
"this Declaration does not add to or diminish the rights and obligations of
Members provided in the TRIPS Agreement" seems to come in contradiction with
the spirit of the declaration. Worse, it chooses to elude the issue of
exports of compulsory-licenced drugs, which aids-stricken countries need to
import NOW - not "before the end of 2002" (3 million people died of aids in
2000).

The European Community had proposed to the General Council language to
clarify exports under CL even after the UK and Germany had opposed that
move. Now the language's nowhere to be seen. European Trade Commission Lamy
must not to allowed to just cowardly play the USTR's deadly game of
obfuscation.

Khalil Elouardighi
ACT UP-Paris

_______________________________


Draft Declaration on Intellectual Property and [Access to Medicines] [Public
Health]


1. We recognize the gravity of the public health crises afflicting many
developing and least?developed countries, especially those resulting from
HIV/AIDS and other pandemics.

2. We stress the need for the WTO Agreement on Trade-Related Aspects of
Intellectual Property Rights (TRIPS Agreement) to be part of the wider
national and international action to address these problems.

3. We recognize that intellectual property protection is important for the
development of new medicines.  We also recognize the concerns about its
effects on prices.

4. Option 1

 [Nothing in the TRIPS Agreement shall prevent Members from taking measures
to protect public health.  Accordingly, while reiterating our commitment to
the TRIPS Agreement, we affirm that the Agreement shall be interpreted and
implemented in a manner supportive of WTO Members' right to protect public
health and, in particular, to ensure access to medicines for all.

 In this connection, we reaffirm the right of WTO Members to use, to the
full, the provisions in the TRIPS Agreement which provide flexibility for
this purpose.]

 Option 2

 [We affirm a Member's ability to use, to the full, the provisions in the
TRIPS Agreement which provide flexibility to address public health crises
such as HIV/AIDS and other pandemics, and to that end, that a Member is able
to take measures necessary to address these public health crises, in
particular to secure affordable access to medicines.  Further, we agree that
this Declaration does not add to or diminish the rights and obligations of
Members provided in the TRIPS Agreement.  With a view to facilitating the
use of this flexibility by providing greater certainty, we agree on the
following clarifications.]

5. In applying the customary rules of interpretation of public international
law, each provision of the TRIPS Agreement shall be read in the light of the
object and purpose of the Agreement as expressed, in particular, in its
objectives and principles.

6. Each Member has the right to grant compulsory licences and the freedom to
determine the grounds upon which such licences are granted.

7. Each Member has the right to determine what constitutes a national
emergency or other circumstances of extreme urgency, it being understood
that public health crises, including those relating to HIV/AIDS and other
epidemics, can represent a national emergency or other circumstances of
extreme urgency.

8. 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.  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.

9. The effect of the provisions in the TRIPS Agreement that are relevant to
the exhaustion of intellectual property rights is to leave each Member free
to establish its own regime for such exhaustion, subject to the MFN and
national treatment provisions of Articles 3 and 4.

10. We agree that least-developed country Members will not be obliged to
implement or apply Sections 5 and 7 of Part II of the TRIPS Agreement or to
enforce rights provided for under these Sections with respect to
pharmaceutical products until 1 January 2016.  We instruct the Council for
TRIPS to take the necessary action to give this effect pursuant to Article
66.1 of the TRIPS Agreement.

11. We agree that, for a period of five years from the date of this
Declaration, the provisions of Articles XXII and XXIII of GATT 1994 as
elaborated and applied by the Understanding on Rules and Procedures
Governing the Settlement of Disputes and as incorporated in Article 64 of
the TRIPS Agreement shall not be exercised with respect to any
non-discriminatory intellectual property law, regulation or other measure of
a developing country Member in sub-Saharan Africa that improves the access
of affected populations in sub-Saharan Africa to patented pharmaceutical
products used in the treatment of HIV/AIDS and other pandemics.