[Ip-health] Deadlock on TRIPS and Public Health deliberations on a "Permanent Solution"

[Thiru Balasubramaniam]

The WTO Ministerial meeting will take place in Hong Kong, China in
December 2005.  Agriculture, non-agricultural market access, and
services remain some of the most contentious leading up  to the Hong
Kong Ministerial.

Recently, trade experts close to the heart of negotiations have asserted
the question of finding a 'permanent solution' to the compulsory
licensing for export of medicines may be used as a pawn in a gambit to
facilitate concessions on priority issues which lie at the core of the
Hong Kong round.

Specifically the contention is that the European Communities and its 25
Member  States aim to get a deal on TRIPS and Public Health to buttress
charges of inflexibility on their Common Agricultural Policy  (CAP).
Some trade experts fear that the impetus to broker a deal  before Hong
Kong may result in a "swift but bad" permanent solution to Paragraph 6
of the Doha Declaration (dealing with compulsory licensing for exports)
indelibly etched into the architecture of international trade.

In this context discussions on October 25, 2005 (Tuesday) at the WTO
TRIPS Council stalled when Members could not agree how to move forward
in crafting a 'permanent solution' to amend the TRIPS Agreement to
facilitate compulsory licensing for export.  In December 2004, the
African Group tabled a proposal to the TRIPS Council which would amend
Article 31 (f) of the TRIPS Agreement taking into account the August 30,
2003 decision
(http://www.wto.org/english/tratop_e/trips_e/implem_para6_e.htm)  which
granted temporary waivers to WTO Members' obligations to implement
Article 31(f) and Article 31(h) of the Agreement.

The African Group tabled further papers giving in March 2005 providing
legal arguments for their original paper.  The African Group paper
received support from many developing countries as a basis for
discussion. The African Group proposal sought to simplify the August 30,
2003 decision by eliminating several redundant provisions.  The African
Group proposal did not consider the Chair of the General Council's
statement
(http://www.wto.org/english/news_e/news03_e/trips_stat_28aug03_e.htm) to
be an integral part of the August 30, 2003 decision.  To many observers
the Chair's statement added more red tape to an already administratively
cumbersome decision. Thus the African Group proposed the Chair's
statement should not be included in an amendment to the TRIPS Agreement
as it had no legal status.  The United States has insisted that the
Chair's statement is an integral part of the August 30, 2003 decision
and must be included in any 'permanent solution' to  the TRIPS Agreement.

In a non-paper released in July 2005 the European Communities and its 25
Member states (EC) offered a position that was supposed to offer a
"middleground" approach to bridge the gap between developing countries
and industrialized countries.  Over the last few weeks, the EC has held
informal consultations with the African Group and the United States with
Chair of the TRIPS Council (Ambassador Choi Hyuck, Korea) in attendance.

Certain observers have asked why the EC has not formally tabled their
paper to the TRIPS Council. At the present moment, the African Group
proposal is the only under formal consideration. Although the TRIPS
Council Chair noted that these consultations were "spontaneous" several
Members including Argentina, Brazil and India registered their
disapproval of this "non-transparent" process at Tuesday's TRIPS Council
and argued that agreement could not take place without a more open
process open to interested Members.  This process debate echoes concerns
over the "green-room" meetings of the ill-fated Seattle Ministerial.  At
the core of the substantive debate is the status of the Chair's
Statement and its potential legal status in any amendment to the TRIPS
Agreement.  The US has insisted that the Chair's Statement has legal
status and the EC non-paper asserts that there is a legal relationship
between the Chair's Statement and the August 30, 2003 raising fears
among developing country Members that the status of the "bound in
red-tape" Chair's Statement will be upgraded.

It remains to be seen whether a 'permanent solution' to Paragraph 6 will
be struck before or after Hong Kong.  One hopes that the end result is
not hastily conceived but will actually ameliorate the lives of sick
people, rich and poor, North and South.

Thiru Balasubramaniam


PS (For more detailed discussions on the TRIPS Council deliberations
please see the Bridges, SUNS, and IP-Watch accounts posted earlier on
ip-health).