WTO TRIPS Council meeting-Bad deal expected

Tuesday, 6 December 2005
Thiru Balasubramaniam

The WTO Council for TRIPS will meet today in Geneva at 3 PM. It is expected that WTO Members agree to "forward a proposal to the General Council containing the draft Decision on the Amendment and the text of the Statement to be read out" by the Chair of the General Council (Amina Mohammed) prior to the adoption of the Decision by the General Council.

Two significant developments demonstrating opposition to this initiative have emerged in the last two days. On Monday 5 December 2005, three Congressmen in the U.S. House of Representatives (Waxman, Brown and Allen) wrote a letter to USTR Ambassador Portman seeking immediate clarification on the "U.S. Government’s stance on access to generic medications at the forthcoming World Trade Organization Ministerial in Hong Kong." (http://lists.essential.org/pipermail/ip-health/2005-December/008776.html)

They noted that,

"[b]ecause of the potential threats to public health preparedness in developing countries and at home, we request clarification of the U.S. Government’s position on compulsory licensing for importation. Specifically, we would like to know why the U.S. reportedly wishes to make permanent a system that has been criticized as overly burdensome and has not yet been shown to be effective. In addition, we request an explanation of why the United States should foreclose the possibility of using the importation mechanism. We would like to know if it is the belief of the U.S. Trade Representative that the United States will be able to “opt back in” to the compulsory licensing for importation system if public health requires. If yes, we request a detailed explanation of the procedures that would have to be employed to permit the United States to do so."

The second development was that on Monday, 5 December 2005, 31 NGOs including Oxfam, Action Aid, Christian Aid, Health GAP, CPTech, Health Action International (Africa and Asia Pacific), Ecumenical Advocacy Alliance, Pharmaciens Sans Frontieres Comite International, Medecins sans Frontieres Access to Essential Medicines Campaign, Act Up Paris, Third World Network and scores of treatment access groups issued a public statement urging WTO delegates to reject a bad deal on medicines. (http://www.cptech.org/ip/wto/p6/ngos12032005.html)

The current set of documents that WTO Members will use to facilitate the adoption of a "permanent solution" amending Article 31 of the TRIPS Agreement include: (1) DRAFT ARTICLE 31BIS, (2) DRAFT ANNEX TO THE TRIPS AGREEMENT, (3) DRAFT APPENDIX TO THE ANNEX OF THE TRIPS AGREEMENT, (4) CHAIRMAN'S STATEMENT, (5) IMPLEMENTATION OF PARAGRAPH 11 OF THE GENERAL COUNCIL DECISION OF 30 AUGUST 2005 ON THE IMPLEMENTATION OF PARAGRAPH 6 OF THE DOHA DECLARATION ON THE TRIPS AGREEMENT AND PUBLIC HEALTH, (6) AMENDMENT OF THE TRIPS AGREEMENT, (7) ATTACHEMENT - PROTOCOL AMENDING THE TRIPS AGREEMENT and (8) CHOREOGRAPHY FOR ADOPTION OF THE DECISION ON THE AMENDMENT.

For an earlier version of Draft Article 31BIS and the Draft Annex to the TRIPS Agreement, please see: (http://lists.essential.org/pipermail/ip-health/2005-December/008757.html)

One significant change in the draft annex to the TRIPS Agreement is that the European Communities (EC) have made a change in footnote 3 which lists Members that will not use the system as importing Members. Basically all names of EC members have been deleted and replaced with "European Communities" (in brackets). This change although seemingly minor would have the effect of making the "opt-out" decision apply to the 10 new Member States of the European Union and it would seem to apply to future accession states such as Bulgaria (GNI per capita of $2740) and Romania (GNI per capita of $2920).

For an unofficial version of the choreography document please see:
http://lists.essential.org/pipermail/ip-health/2005-December/008774.html

Step 3 of the choreography document states,

"Representatives of the 11 partial opt-out Members would then make statements in the General regarding their intention to use the system as an importer only in situations of national emergency or other circumstances of extreme urgency. If they do not make such a statement, it would be expected that they would have sent a letter in advance to this effect."

Furthermore, this Choreography document would appear to prejudice any implications the intervention delivered by the Philippines (IP/C/M/41) at the TRIPS Council on 28 August 2003 where the Philippines expressed a broader understanding of the 30 August Decision than the narrow restrictive Chair's text. By accepting the current "Choreography" document as is, WTO Members would prejudice the 28 August 2003 intervention of the Philippines which greatly mitigated the restrictive scope of the Chair's Statement.