[Ip-health] Status of TRIPS and Public Health negotiations

[Thiru Balasubramaniam]

http://fromgeneva.blogspot.com/2005/12/status-of-trips-and-public-
health.html

FromGeneva
Friday, December 02, 2005
Status of TRIPS and Public Health negotiations
Thiru Balasubramaniam

The WTO General Council is holding informal consultations on TRIPS
and public health on proposals to amend the TRIPS Agreement to permit
the export of medicines produced under a compulsory licence with
insufficient or no manufacturing capacity. Currently negotiations
have centered on a draft text presented by General Council Chair
Ambassador Amina Mohammed of Kenya.

(http://lists.essential.org/pipermail/ip-health/2005-December/
008757.html)

This draft text contains the entire August Decision barring the
preamble and paragraph 11 of the Decision which contained the mandate
to find a permanent solution. In the run-up to the Hong Kong
Ministerial the United States has made clear that any permanent
solution amending Article 31 of the TRIPS Agreement should contain a
clear reference to the text of Chairman Carlos P=E9rez del Castillo's
statement of 30 August 2003. Ambassador Castillo issued this
statement to "comfort those who feared might be abused and undermine
patent protection". The Chair's statement added more red tape to a
deal already abounding in red tape.

It is understood now that the United States has dropped its
insistence to a written reference to Charman Castillo's statement in
a permanent solution to Article 31 of the TRIPS Agreement. In return
for this "concession", it has come to our attention that the Chair's
statement will be read out orally at the time of adoption of a
permanent solution. The grim prediction from trade diplomats is that
a deal based on Chair Amina Mohammed's draft text for a permanent
solution amending Article 31 of the TRIPS Agreement will be reached
this weekend. The feeling one gets is watching a train wreck in slow
motion and feeling powerless to stop it.

According to the definition of an eligible importing Member provided
in this draft text, "some Members will not use the system as
importing Members". Footnote 3 lists these 23 Members which include:
Australia, Austria, Belgium, Canada, Denmark, Finland, France,
Germany, Greece, Iceland, Ireland, Italy, Japan, Luxembourg, the
Netherlands, New Zealand, Norway, Portugal, Spain Sweden,
Switzerland, the United Kingdom and the United States.

In the European Communities non-paper circulated earlier, the
European Communities did not specify their individual Member States
opting out but rather listed the entire European Union as opting out.
There is controversy and ambiguity as to whether any of these 23
Members can opt back in.

This issue is addressed however in part by Chairman Castillo's
statement which named 10 WTO Members which since have acceded to the
European Union. However, it is still unclear whether the European
Union will insist on its 10 new accession states as opting out of the
solution.

As the recent avian flu and Tamiflu debate has shown, this policy is
clearly misguided. The permanent solution will certainly not engender
efforts to employ economies of scale.

Public health and development organizations have expressed serious
concerns about locking Members into a permanent solution that has yet
to work in practice. If a deal is concluded based on the text of
Chair Amina Mohammed's proposal, one has to question whether WTO
Members are serious about implementing the Doha Declaration's
exhortation that TRIPS "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". One
wonders why WTO Members are so enthusiastic to adopt a solution
endorsed by Big Pharma and opposed by virtually every public health
group working on this issue.