1. General Council postpones decision on Para 6 issue

The WTO General Council met today (10 February) and one of the main decisions it made was to “suspend” making a decision on the resolution of the issue of Para 6 of the Doha Declaration on TRIPS and Public Health. At a press conference this evening, the Chairman of the General Council, Ambassador Sergio Marchi of Canada, said the discussion of the TRIPS and health issue had been “suspended” at the General Council on the advice of the Chair of the TRIPS Council, as “the issue is still alive.” Ambassador Marchi said the issue will be discussed again at the next meeting of the TRIPS Council starting on 18 February. However it is also generally expected that the issue may figure prominently at the WTO so-called “Mini-Ministerial” meeting of 24 Ministers in Tokyo on 14-15 February.

The Doha Declaration had mandated that the issue be resolved by 31 December 2002 but that deadline passed without resolution. The TRIPS Council is supposed to find a solution and report to the General Council on it. However, at today’s General Council meeting, the Chair of the TRIPS Council (Ambassador Perez Motta of Mexico) today requested the General Council for “additional period for further deliberations in capitals and consultations in Geneva”, as no agreement had been reached on the solution for Paragraph 6. He added that he had been exploring “certain ideas” with the Members and had had positive reactions to those ideas, although it was “too early to be able to report on whether these will lead to a final solution”.

2. The TRIPS Chairman’s “understanding”

It is widely known that the main idea being explored by the TRIPS Chairman is a proposal that the Chairman table a statement of “a number of understandings”, to which the adoption of the December 16 Motta text on paragraph 6 would be subject. This statement was forwarded to WTO Members on February 5.

The statement (reproduced below) comprises three “understandings”, which have merged from the discussion leading up to the formulation of the December 16 Motta text. Firstly, the WTO Members would reconfirm their commitment to the provision of the Doha Declaration and “to the need to respect fully its provisions”.

Secondly, it states that “delegations have made it clear that they see the system that we are establishing under paragraph 6 of that Declaration as being essentially designed to address national emergencies or other circumstances of extreme urgency”.

Finally, it states that the delegations “recognise the need to avoid undermining the importance of intellectual property protection for the development of new medicines”, as well as re-stating the language of the Doha Declaration that “the TRIPS Agreement does not and should prevent Members from taking measures to protect public health”.

3. “Positive reactions”? Apparently not from all….

It is not clear which Members the TRIPS Chair was referring to when he reported to the General Council that he had received “positive reactions” to the ideas he had been exploring in order to reach agreement on the Paragraph 6 solution. Nor is it clear what ideas these were.

Insofar as the reactions to the proposals to limit the scope of disease (put forward by the US, EC and Japan), developing countries had been unequivocal in that they would not accept any compromise that restricts the scope of diseases in the solution to the Paragraph 6 problem. The developing countries had said it would be a waste of time to discuss such proposals. (See TWN Info Service, February 6, 2003 – Update on 5 Feb 2003 informal meeting of TRIPS Council and Background to the Negotiations on Para 6).

As for the proposal on the statement of understanding, Members had been meeting over the past week to discuss it. It is understood that many developing countries had concerns about the implication of such an understanding.

The Africa Group of countries had met on Friday to discuss their reaction to this proposal. It appears that the majority of the Group is not comfortable with the statement, particularly with the understanding that the Motta text solution for Paragraph 6 is “essentially designed to address national emergencies and other circumstances of extreme urgency”. It is learnt that Members in the Group have drafted an amendment to the understanding, to the effect that references to national emergencies and extreme urgency circumstances have been replaced with language as found in the Doha Declaration. That is, the amendment would have Members understand that the Motta text solution for Paragraph 6 is “essentially designed to address public health problems affecting developing countries with insufficient or no manufacturing capacity in the pharmaceutical sector, as called for in the Doha Declaration”.

However, it is reported that the Group is yet to agree on this as a common position due to differences of views, particularly that of South Africa. It is reported that South Africa is in favour of the Chair’s understandings without change. There are concerns that South Africa’s position may hinder the possibility of the Africa Group presenting a common position on this matter.

Other developing countries have also expressed concerns that the national emergencies language will unnecessarily restrict the operation of the Motta text solution on Paragraph 6, and thereby curtailing the rights of WTO Members to issue compulsory licences on public health grounds. A number of developing countries said that they would agree with the amendment by the Africa Group. It is also understood that at least one Member may express their objection to the understanding as a whole.

It is reported that the US did not offer its view on the understanding, when the TRIPS Chair met with them. Apparently, no decision from the US will be forthcoming until later this week. As one commentator observed, “Washington is still awaiting instructions from the industry”.

It is also not clear what the EC has to say about the understanding. According to sources, the news of this development has yet to reach many at the capitals, although those who have heard about it are apparently not too keen on the proposal.

4. Rosy picture painted at press conference…..

At a press conference held late this afternoon, the Chair of the TRIPS Council Ambassador Perez Motta painted a rather rosy picture that a solution was possible in the next few days. He gave an impression that almost all WTO members would agree to the proposed Chairman’s statement of understanding. Tracing the developments that led to that statement, he said that after the TRIPS Council informal discussions last week on the EU and Japan proposals (that were rejected), he had a meeting with “African colleagues” and agreed on a few elements that came up with a new proposal. One of the elements, “as raised by many African delegations” was that they would use the December 16 system “basically for an emergency situation.” He then decided to put forward a chairman’s text with three elements; reaffirming the Doha Declaration’s integrity, an understanding that the December 16 text is specifically used for situations of emergency and extreme urgency, and that it is important to balance IPRs and flexibility of developing countries to deal with public health crises.

Motta said he received “general support” by many WTO members for this text, although many wanted to change it. He added the US delegation is now consulting with its capital before giving a final response to that proposal. That is why he asked the General Council to give a few days more to see what could be done before or at the latest by the TRIPS Council meeting of 18 February. He said the proposal had to be decided on soon, whether it flies or not, and just like the EU and Japan proposals, it does not have a long life.

(Motta will chair his last meeting of the TRIPS Council starting 18 February, and after that meeting Singapore’s Ambassador Menon will take over the Chair. Thus, there is the feeling that if the proposed ‘chairman’s understanding’ does not “fly” by 18 February, it will not succeed).

Motta also added that the “emergency” element in his draft was what could make a difference in getting the confidence of the US drug industry to accept the text as a solution, “just to say that the mechanism will mainly be used for emergency and extreme urgency.” He also said that no one likes the formulation, everyone wants a different draft, that is why this draft is a “take it or leave it” text and it would not be changed. Motta also later said that he had the impression that everyone would accept the text if the US does.

5. …..But the situation on the ground is rather more cloudy

Although the TRIPS Council chairman was rather optimistic, in that everyone else was just waiting for Washington to say “yes” to his proposed statement of understanding, the reality is much more complex and mixed. Interviews with several delegations showed that they had major misgivings about the proposal, especially with the implication that the 16 December mechanism would be used only in situations of emergency and extreme urgency. Most African countries are unhappy with this and have come up with their own alternative formulation (see Part 3 of this report above). Many diplomats, when asked their response to the proceedings of the press conference, disputed the notion that all countries except the US had agreed to the proposed solution. Some said that they could not accept the language as it would put them many steps back from what had been achieved at Doha. “If you ask us to declare an emergency or a situation of extreme urgency every time we want to take a measure like compulsory measure, how many dozens of emergency declarations must we make for the many, many diseases we have to deal with?” was a comment made by one senior diplomat. It was a view that many share.

Annex:

(Statement proposed by Chair of TRIPS Council, February 5, 2003)

Before proposing the adoption of the text of 16 December 2002,1 would like to put on record a number of understandings which have emerged from the discussions leading up to the formulation of this text.

The first is that all delegations have reconfirmed their commitment to the provisions of the Doha Declaration on the TRIPS Agreement and Public Health and to the need to respect fully its provisions.

Secondly, delegations have made it clear that they see the system that we are establishing under paragraph 6 of that Declaration as being essentially designed to address national emergencies or other circumstances of extreme urgency.

Third, delegations have recognized the need to avoid undermining the importance of intellectual property protection for the development of new medicines and have also reaffirmed that the TRIPS Agreement does not and should not prevent Members from taking measures to protect public health.

Having put on record these understandings, I would propose the adoption of the draft decision contained in ...

(end)