PHA-Exchange> SOLUTION ON TRIPS AND PUBLIC HEALTH REMAINS ELUSIVE

[Aviva]

From: "Equinet News" <equinet-newsletter at equinetafrica.org>

SOLUTION ON TRIPS AND PUBLIC HEALTH REMAINS ELUSIVE
Rangarirai Machemedze
When US Trade Representative Robert Zoellick met representatives of the
US
pharmaceutical industry in April this year hopes were raised in the
international community, particularly in developing countries, who
viewed
the meeting as a way forward in breaking the impasse in the WTO over
how to
provide developing countries with access to affordable generic drugs.

It is now six months after the Doha-mandated deadline passed on the
31st
December 2002 for WTO members to come up with a solution to public
health
crises exacerbated by unaffordable patented drugs. With only three
months
left before the 5th WTO Ministerial Conference in Cancun, Mexico,
nothing is
expected to materialise before the conference.

Hopes were pinned on the US compromising on its earlier decision to
limit
the scope of diseases but nothing came out of that meeting, which
Zoellick
attended. In fact industry representatives last year had pressurised
Zoellick to reject a proposal that would be open-ended in terms of
allowing
developing countries (without or with limited manufacturing capacity)
to
grant compulsory licences for the manufacture and importation of
generic
drugs to combat a variety of health problems. This made the US
government
issue a moratorium that carried the concerns of their pharmaceutical
industries, basically on strict limits on the number of diseases
covered by
these new flexibilities.

The TRIPS (Trade-Related Aspects of Intellectual Property Rights)
Council,
which last met sometime in February, met again in Geneva to try and see
how
best to break the impasse. The TRIPS Council meeting on June 4-6, in
its
last formal session before the Cancun Ministerial Conference in
September,
did not make progress towards agreement on a solution for the Paragraph
6
problem.

Reports coming from Geneva said although the WTO members had not
expected a
breakthrough at this meeting, many developing country negotiators
expressed
their frustration at the seemingly unbreakable impasse in the
negotiations.
It is reported that the US had reinforced this perception by stating
that a
consensus was not yet possible, in response to the Kenyan negotiator's
comment that there appeared to be no objection to the 16 December 2002
text.

The US objection to the December 16 text was based on the issue of
scope of
diseases and the reference to Paragraph 1 of the Doha Declaration which
refers to "the public health problems afflicting many developing and
least-developed countries, especially those resulting from HIV/AIDS,
tuberculosis, malaria and other epidemics." The reference to "public
health
problems as recognised in Paragraph 1 of the Declaration" was too broad
for
the US. The US then proposed that the scope of diseases in the December
16
text should be limited to "HIV/AIDS, malaria, tuberculosis or other
infectious epidemics of comparable gravity and scale, including those
that
may arise in the future". This had been opposed by the majority of the
WTO
Members as an attempt to limit the scope of diseases already agreed to
at
Doha.

The TRIPS Council considered two submissions, one from the group of
African,
Caribbean and Pacific (ACP) countries, and the other, from the European
Communities (EC).

The ACP countries basically reiterated their previous position that
they
would want to see a solution that covers all public health concerns,
without
limiting agreement to specific diseases. The Group also rejected
attempts to
confine the application of the Paragraph 6 solution to national
emergencies
and other circumstances of extreme urgency.

The European Communities last year made a proposal on an initial list
of
diseases that would be covered under Paragraph 6 of the Declaration.
The EU
Trade Commissioner Pascal Lamy argued that other diseases applicable
under
the Declaration could be checked or approved by the World Health
Organisation (WHO) as the situation arises. Such proposals were nothing
but
measures to protect the corporate world. In addition to limiting the
scope
of diseases, the EC effectively wanted to add bureaucratic and
political
hurdles for poor countries, who would have to go through the rigours of
the
WHO system to prove that a health problem actually exists in the
country for
a disease that is not on the initial WTO list.

Again in their submission to the TRIPS Council the EC did not move away
from
their previous position. The EC suggested that WTO Members could agree
on an
initial list of diseases that would be covered by the December16 text,
and
any Member wishing to import medicines to meet a public health concern
that
was not explicitly covered in the list would be encouraged to seek WHO
advice on the matter. The ACP group rejected this, saying it was
designed to
place limits on the scope of diseases.

With the differences that exist between and amongst the WTO members,
particularly the rift between the EU and the US and between both the
developed and developing countries, it is highly unlikely that a
solution
will be found before Cancun. It is reported that the TRIPS Council
chairman,
Ambassador Vanu Gopala Menon of Singapore, told the meeting that he
would
continue to hold consultations in small groups and bilaterally until a
permanent solution is found.

At the Southern and Eastern African Trade, Information and Negotiations
Institute (SEATINI) 6th Workshop held in Arusha (April 2003),
participants
from fifteen African countries urged African governments and
delegations "to
stand firm before Cancun, by insisting on a solution that is true to
the
spirit and letter of the Doha Declaration". They went on to say that
whatever the final outcome of the negotiations, it must cover "all
diseases
and public health issues". Governments must have the right, they
argued, "to
determine what constitutes a public health problem". The solution, in
other
words, should not be confined only to some diseases, or to emergencies,
or
to circumstances of extreme urgency.

Again this recommendation was apparently in reference to the 2002
year-end
moratorium issued by the US, which effectively was not consistent with
the
spirit of Doha. The US had rejected the text that primarily carried the
concerns of developing countries due to concerns over the scope of
diseases
covered.

Western industrial and pharmaceutical corporations, aided by bilateral
donors, in the meantime, are putting pressure on certain African
countries
to amend their patent laws so that they protect the property rights of
these
corporations. This is the case, for example, with Uganda, where,
alarmingly,
under pressure from certain quarters, the Government is pressing for
legislation in the Parliament - the Uganda Industrial Property Law
(IPL) -
that seeks to modify the laws of Uganda to conform to the TRIPS
provisions
of the WTO, when, in fact, Uganda, as an LDC, need not have such a law
until
2016.

Meanwhile, the Third World Network reports that WHO Member states
meeting at
the World Health Assembly (May 19-28, 2003) in Geneva adopted a
resolution
on Intellectual Property Rights, Innovation and Public Health,
directing the
WHO Director-General to establish a "time-limited" body that would
study and
make concrete proposals on the question of appropriate funding and
incentive
mechanisms to promote the creation of new medicines for diseases
affecting
developing countries.

The resolution also asks the WHO to cooperate with Member states to
develop
"pharmaceutical and health policies and regulatory measures" to
"mitigate
the negative impacts" of international trade agreements.

Other operative parts of the resolution include references to the WTO
TRIPS
Agreement, in which Member states were urged to "use to the full the
flexibilities contained in the TRIPS Agreement" in their national laws.
The
resolution also called on governments to agree on a "consensus
solution" for
Paragraph 6 of the Doha Declaration on TRIPS and Public Health before
the
Fifth WTO Ministerial Conference in September this year.

The Paragraph 6 problem refers to the inability of many developing
countries
to effectively use compulsory licences to obtain affordable medicines
from
domestic generic drug producers, since the majority of the developing
countries do not have domestic manufacturing capacity in pharmaceutical
products. WTO Members have not been able to agree on the solution for
this
contentious issue, even though the end of 2002 deadline set in the Doha
Declaration has passed.

The compromise text of the resolution was adopted only after prolonged
consultations and negotiations, primarily between the US, Brazil and a
number of African countries. Developed countries, in particular the US,
had
not been in favour of a strong mandate for the WHO to address IPR
issues.
Developing countries, on the other hand, had been pressing for a
clearer
mandate to permit the WHO to properly assess the public health
implications
of tightened IPR protection, as a result of obligations under the TRIPS
Agreement, as well as regional and bilateral trade agreements.

* Rangarirai Machemedze is the SEATINI Programmes Coordinator.

>From the SEATINI BULLETIN: Southern and Eastern African Trade,
Information
and Negotiations Institute
For more information and subscriptions, contact SEATINI,  email: 
seatini.zw at undp.org,Website:
www.seatini.org