Status of TRIPS and Public Health negotiations

2 December 2005

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 to countries 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 Pérez 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. There is controversy and ambiguity as to whether any of these 23 Members can opt back in.

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.

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.