WTO Ministerial Section • Volume 5 • Number 37 • 30th October 2001

Draft Declaration On TRIPs And Health Highlights Divisions In The WTO

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The WTO draft Declaration on intellectual property rights (IPRs) and health — released by WTO General Council Chair Stuart Harbinson on 27 October along with the draft Ministerial Declaration and the draft Decision on Implementation — underlines the gulf that remains between developed and developing country Members on this issue (draft available at http://www.ictsd.org/ministerial/doha/docs/IP27oct.pdf). Divisions are most pronounced on the scope of the Declaration, including its possible application to ‘public health’ or ‘access to medicines’. Being referred to by some as a public relations exercise, this Declaration is likely to become one of the key contentious issues at the rapidly approaching WTO Ministerial Conference in Qatar next week.

Options for the Declaration’s scope

While only a few brackets remain in the text of the draft Declaration (i.e. denoting unresolved issues), they clearly highlight the fundamental differences in the approach of developed and developing country Members to the relationship between IPRs and health, and the scope of the Declaration. In particular, brackets remain in the title of the draft text, referring to IPRs and "public health", as demanded by developing countries, or IPRs and "access to medicines", as favoured by developed country Members. Strong disagreement also prevails over para. 4 of the text, which presents two options: Option 1 reflects developing country demands that "nothing in the TRIPs Agreement shall prevent Members from taking measures to protect public health", while Option 2 presents the view put forward mainly by the US and Switzerland, affirming Members’ ability to use the provisions in the TRIPs Agreement that provide flexibility "to address public health crises such as HIV/AIDS and other pandemics", and emphasising the right "to secure affordable access to medicines".

Reactions

Developing countries insist that at least the notion of Option 1 must be reflected in the final Declaration for it to be meaningful. As one developing country representative pointed out, the current formulation in the first option already accommodates developed countries’ demands by "reiterating our commitment to the TRIPs Agreement", thereby providing the context in which Option 1 should be read. The delegate criticised Option 2 for simply stating what has always been the case and is widely known, and expressed concern that the text in Option 2 stating that "the Declaration does not add to or diminish the rights and obligations of Members Provided in the TRIPs Agreement" renders the Declaration largely worthless for use in dispute settlement cases.

Nevertheless, some developing countries believe that some aspects of the draft Declaration present a step forward in the debate. One delegate pointed in particular to Members’ rights under paras. 6, 7, and 9, which in themselves would represent significant gains even if developing countries did not succeed with their proposal for para. 4. Para. 6 states that Members have the right to determine the grounds for issuing compulsory licenses, i.e. allowing the use of a patent without the consent of the patent-holder under certain conditions; para. 7 asserts Members’ right to decide what constitutes a national emergency (during which Members can issue compulsory licenses without having to make efforts to obtain authorisation from the patent holder); and para. 9 leaves Members free to establish their own regimes for exhaustion of IPRs.

Non-governmental organisations strongly criticised the draft Declaration, which they say is so watered down that it will be unacceptable for developing countries. "We had hoped that the issue of access to the patented anti-anthrax drug, Cipro, would make rich country governments more sensitive to the needs in developing countries", said Justin Forsyth, Oxfam GB Policy Director. "But the latest reports from the WTO in Geneva indicate that the US has not budged an inch."

Other outstanding issues

EU demands for a provision calling on countries to ensure that discounted medicines did not flow back into developed country markets (see BRIDGES Weekly, 23 October 2001) did not receive a mention in Harbinson’s proposed text. In contrast, the US proposal on an extension of transition periods for Least-Developed Countries and a moratorium on bringing disputes against Members from sub-Saharan Africa (see BRIDGES Weekly, referenced above) was included in the draft Declaration without brackets. One developing country delegate expressed surprise at its inclusion given that it was an informal proposal by just one country. However, as another developing country representative pointed out, the US proposal had effectively become meaningless in light of the flexibilities already affirmed in paragraphs 6,7 and 9.

Another key contentious issue, namely whether Members are allowed to issue compulsory licenses in order to import generic drugs, was left largely unresolved. While the draft Declaration recognises the difficulties of countries with insufficient manufacturing capacity to effectively use compulsory licensing, it simply instructs the TRIPs Council to find "expeditious solutions" to this problem and report back to the General Council before the end of 2002. This debate revolves around Art. 31(f) of the TRIPs Agreement, which states that the use of compulsory licenses should be "predominantly for the supply of the domestic market of the Member authorizing such use".

The draft will now be presented to the General Council on 31 October, but no further discussions are expected until the Ministerial.

"US and other rich countries block life-saving drug deal for poor countries," OXFAM NEWS RELEASE, 29 October 2001; ICTSD Internal Files.