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Date: Wed, 26 Sep 2001 15:26:18 -0700
From: Charlotte Utting <[log in to unmask]>
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Subject: [WASAN] FW: Africa: Health Rights and Trade Talks
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From: "Africa Action" <[log in to unmask]>
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Date: Wed, 26 Sep 2001 13:30:34 -0500
To: [log in to unmask]
Subject: Africa: Health Rights and Trade Talks
Africa: Health Rights and Trade Talks
Date distributed (ymd): 010926
Document reposted by APIC
Africa Policy Electronic Distribution List: an information
service provided by AFRICA ACTION (incorporating the Africa
Policy Information Center, The Africa Fund, and the American
Committee on Africa). Find more information for action for
Africa at http://www.africapolicy.org
+++++++++++++++++++++Document Profile+++++++++++++++++++++
Region: Continent-Wide
Issue Areas: +economy/development+ +health+
SUMMARY CONTENTS:
This posting contains (1) a joint statement by Medecins Sans
Frontieres, Oxfam and Third World Network on the latest
negotiations in Geneva over trade-related intellectual property
rights (TRIPS) and health, (2) text of a petition "Health before
wealth" that is open for individual signatures on the web site of
OXFAM UK, and (3) a background analysis from Third World Network of
the positions taken on the issue in the most recent talks.
The Third World Network website also extensive additional
background information, including the text of a longer statement on
these issues: "Re-thinking TRIPS in the WTO - NGOs demand review
and reform of TRIPS at Doha Ministerial Conference"
That statement is open for organizational signatures; Africa Action
is one of the groups that has endorsed the statement. See:
http://www.twnside.org.sg/title/joint5.htm
For other links and background documents, see;
http://www.africapolicy.org/action/access.htm
+++++++++++++++++end profile++++++++++++++++++++++++++++++
Joint Press Statement by M,dicins Sans Fronti,res (MSF), Oxfam
and Third World Network (TWN)
TRIPS Council Special Discussion on Access to Medicines, September
19, 2001
A small number of rich countries, led by the United States and
Switzerland, are obstructing progress at the WTO on the
controversial subject of how patent rules affect access to
medicines in poor countries. Yesterday, at the TRIPS Council
Special Discussion on access to medicines, proposals from over
fifty developing countries were countered by a statement from five
industrialised countries that echoed the well-rehearsed views of
the international pharmaceutical companies. Developing-country
delegates left the conference room voicing a deep sense of
frustration at the intransigence of the US and Switzerland, whose
arguments had been seconded by Japan, Australia and Canada.
MSF, TWN and Oxfam fear that a unique opportunity to ensure that
TRIPS does not prejudice public health in poor countries is being
wasted. Michael Bailey of Oxfam commented that 'the US-sponsored
paper presented yesterday, which was not even a complete draft,
showed disdain for the concerns of the developing world, and risks
bringing the TRIPS Agreement into further disrepute'. The United
States and Switzerland argue that there is essentially no problem
with the Agreement, and no need for clarifications at Doha.
52 developing countries had produced a well-argued and balanced
proposition for how the WTO patents rules (known as the TRIPS
Agreement) should be interpreted in a way that guarantees the
ability of governments to ensure access to affordable medicines.
One of their demands was for WTO members to state, without
qualification, that the TRIPS Agreement shall not prevent
governments from taking measures necessary to protect public
health. Sadly, even this met with opposition. The
developing-country group, which included the African, Asian,
Caribbean and Latin American nations, asked WTO members to support
their proposal to the forthcoming Ministerial Conference in Doha,
where it would be endorsed as a free-standing declaration.
In the meeting, the European Union accepted some of the concerns of
developing countries but stopped well short of full endorsement.
'We can see a gap between the US and EU positions, but the EU has
to come off the fence and support the developing countries' said
Ellen 't Hoen of MSF. 'Many lives depend on the political will of
WTO Members to reach a clear agreement at Doha.'
'The response of the industrialized countries to the problems with
TRIPS is the litmus test for whether the WTO will put people's
needs before the commercial interests of its most powerful
members,' said Cecilia Oh of Third World Network. 'The refusal of
the five wealthy trading nations to prioritise public health can
only increase public scepticism about the social benefits of the
TRIPS Agreement'.
*****************************************************************
Health before wealth
Demand the WTO change its patent rules
To sign this petition fill in the form at:
http://www.oxfam.co.uk/e-campaigns/unclesam/uspetition.html
Every day 37,000 people die from preventable diseases such as
HIV/AIDS, malaria, and tuberculosis.* Most of these deaths are in
the developing world where many life-saving drugs are unaffordable
because they are patented under rules set by the World Trade
Organisation (WTO).
There is now a strong movement of governments, charities,
churches, activist groups and health bodies urging the WTO to
change these rules to allow countries the right to make vital
medicines more cheaply. However a few rich WTO members -
particularly the United States - are blocking these moves, and
pressurising developing countries to apply even more restrictive
rules at national level.
Oxfam, Third World Network and Health Gap Coalition are part of a
global alliance which is urging WTO members, in particular the US,
to demonstrate their commitment to put people's health before the
profits of powerful drugs companies.
Will you help us change the WTO rules? Add your name to our
petition which we will present to the WTO at its forthcoming
summit. Thank you.
Sign the global petition
Add your name now!
14 million people* in the developing world die every year from
treatable diseases, including HIV/AIDS, malaria, and tuberculosis.
The high cost of medicines is a key factor. World Trade
Organisation patent rules are pushing up the price of these
medicines. I urge WTO members, in particular the United States, to
demonstrate their commitment to put health before wealth by
changing and clarifying the global patent rules at the forthcoming
WTO summit conference.
Name:
Email:
Country:
* All figures based on the World Health Organisation's World Health
Report 2000. Although there is - as yet - no cure for HIV/AIDS,
modern medicines can greatly prolong healthy life.
**************************************************************
TWN INFO SERVICE ON WTO ISSUES
Third World Network: September 26, 2001
http://www.twnside.org.sg
Update on TRIPS Council Special Discussion on Access to
Medicines (September 19, 2001) and TRIPS informal meeting
(September 21, 2001)
Dear friends and colleagues
On September 19, the WTO TRIPS Council held its second Special
Discussion on TRIPS and access to medicines. The discussions
continued over in an informal meeting of the TRIPS Council,
which met on September 21. The highlight of the Special
Discussion was the proposal of a stand-alone Ministerial
Declaration on TRIPS and public health from the developing
countries. The developing countries had, in July, called for a
process of identifying elements for a Ministerial Declaration.
The hardliners; namely the US and Switzerland, had earlier
objected to such a process, continue in their attempts to block
a declaration on TRIPS and access to medicines. It appears now
that Australia, Canada, Japan and New Zealand have also joined
the hardlinersAE camp. The EU position seems more supportive of
the developing countries, although the EU position is not yet
clear on some key points raised by the developing countries.
Consultations are on-going, and it is understood that EU and the
developing countries are hoping to get agreement on a text for a
Ministerial Declaration on TRIPS and access to medicines.
Consultations are also expected on how the TRIPS process will be
coordinated with the overall preparatory process for Doha within
the General Council.
Below is a report on the two recent TRIPS meetings. We hope you
find it of use.
With best wishes,
Cecilia Oh, TWN
---------------------------------------------
Report on TRIPS Council Special Discussion on Access to
Medicines (September 19, 2001) and TRIPS Informal Meeting
(September 21, 2001)
By Cecilia Oh, Third World Network
Geneva, September 26, 2001
1. INTRODUCTION/SUMMARY
On September 19, the WTO TRIPS Council held its second Special
Discussion on TRIPS and access to medicines. The discussions
continued over in an informal meeting of the TRIPS Council,
which met on September 21.
The WTO debate on the TRIPS Agreement, public health and access
to medicines appear to have coalesced, for the moment, into
positions put forward by three groupings of countries in the
form of "non papers" (WTO-speak for an informal proposal which
can be further negotiated and amended).
The highlight of the Special Discussion was the proposal of a
stand-alone Ministerial Declaration on TRIPS and public health
from the developing countries. The developing countries had, in
July, called for a process of identifying elements for a
Ministerial Declaration.
The US and Switzerland, which had earlier objected to such a
process, continued in their attempts to block a declaration on
TRIPS and access to medicines. It appears now that Australia,
Canada, Japan and New Zealand have also joined the two
countries.
The EU position seems more supportive of the developing
countries, although the EU position is not yet clear on some key
points raised by the developing countries.
Consultations are on-going, and it is understood that EU and the
developing countries are hoping to get agreement on a text for a
Ministerial Declaration on TRIPS and access to medicines.
Consultations are also expected on how the TRIPS process will be
coordinated with the overall preparatory process for Doha within
the General Council.
2. DEVELOPING-COUNTRY PROPOSAL
[Note: The developing country group includes 33 countries of
African Group, plus Bangladesh, Barbados, Bolivia, Brazil, Cuba,
Dominican Republic, Ecuador, Haiti, Honduras, India, Indonesia,
Jamaica, Pakistan, Paraguay, Philippines, Peru, Sri Lanka,
Thailand, and Venezuela.]
The first group of countries, represented by developing
countries, has made its position clear. The group of 50-odd
developing countries -- which had been spearheading efforts in
the WTO to address concerns relating to TRIPS, patents and
access to medicines -- circulated a non paper at the Special
Discussion of the TRIPS Council on September 19, 2001. The paper
puts forward a draft text for a Ministerial Declaration on TRIPS
and Public Health, which the developing countries want to see
endorsed by Ministers at the forthcoming Doha Ministerial
Conference in November 2001.
The draft declaration contains 17 preambular paragraphs. Its
operative section (comprising 14 paragraphs) starts with the
proposition that eenothing in the TRIPS Agreement shall prevent
Members from taking measures to protect public healthAE, which
the developing countries wish to have affirmed by the Ministers
in Doha. Following on from this overarching principle, the paper
elaborates on some of these public health measures, including
parallel imports, compulsory licences for production and
exports, establishment of (easier) marketing approval
procedures for generic products, and authorization of production
and export of medicines without consent of patent holders to
address public health needs in importing WTO Members.
In addition to clarification on specific issues relating to
parallel imports and compulsory licences, the developing-country
paper would also have the Members agree to "refrain from
imposing or threatening to impose sanctions or ... granting
incentives or other benefits ... which could curtail the
ability of developing and least-developed country Members to
avail themselves of every possible policy option to protect and
promote public health." The draft declaration further talks of
Members exercising "utmost restraint" in terms of dispute
settlement proceedings, and an extension of TRIPS implementation
deadlines for developing and least-developed countries.
3. THE COUNTER-PROPOSAL BY US, SWITZERLAND, ETC.
A US and Swiss-led coalition of countries had also circulated a
non paper, which many refer to as the counter-proposal to the
developing-country paper. Australia, Canada, Japan, Switzerland
and the US, submitted their proposal for preambular language for
the Ministerial Declaration regarding "Access to Medicines for
HIV/AIDS and other Pandemics." The paper circulated during the
Special Discussion contained only a preamble - the second part
of the document appearing 2 days later at the informal meeting
on September 21.
The preamble implicitly rejected the developing countries' call
for a separate Ministerial Declaration on TRIPS and public
health, and also sought to restrict the discussion and/or any
declaration to only medicines for pandemics such as HIV/AIDS.
The preamble seeks reaffirmation that the "TRIPS Agreement
contributes to the availability of medicines" and of Members
commitment to the Agreement and its implementation. It also
notes that the discussions in the TRIPS Council have "clarified
Members' views of the flexibility provided under the Agreement."
The second part of the document containing "clarification
language" was introduced by the US on September 21, and listed
the Czech Republic and New Zealand as additional co-sponsors
(and Australia missing from the line-up). This six-paragraph
document still appears to be incomplete, although it is not
known when the next parts are to be expected.
The first paragraph of the document refers to the interpretation
of TRIPS provisions; that they be read in accordance with the
customary interpretation rules of public international law, but
no reference was made to Articles 7 & 8 of TRIPS, which set out
the context and objectives of the Agreement. While acknowledging
that Members are free to determine the grounds for grant of
compulsory licences, the document does not address those
specific grounds for which developing countries have asked to be
affirmed and clarified as TRIPS-compliant.
Three of the six paragraphs are devoted to the issue of
exhaustion of rights. Grudgingly admitting that "the TRIPS
Agreement does not prevent Members from adopting the exhaustion
regime that they regard in their best interests," the paper
seems also to say that parallel imports are limited to goods
that have been placed on the market with the consent of the
right holder (although legal experts have argued that goods
placed on the market by compulsory licensees would similarly
exhaust the rights of the patent holder). The paper also
encouraged Members to take measures to prevent leakage of
pharmaceuticals supplied under discounted pricing or aid schemes
into markets for which they were not intended. The issues of
parallel imports and differential pricing had already been
discussed in previous meetings, when developing countries had
made it clear that they did not want the issue of differential
pricing to be a conditionality or limitation on the exercise of
their rights related to parallel importation or compulsory
licensing.
4. THE EU POSITION
The European Union is the third group, apparently taking the
middle ground in the debate. During the Special Discussion, the
EU had expressed sympathy for the proposal for separate
Ministerial Declaration.
A non paper was later circulated by the EU during the informal
meeting of TRIPS Council on September 21. The paper puts forth
text for a "Draft Declaration on TRIPS and access to affordable
medicines," with its first operative paragraph stating that the
"TRIPS Agreement shall be implemented in a way as to ensure
access to affordable medicines for all in the context of public
health policies." While this is certainly closer to the
developing country proposition (that nothing in the TRIPS
Agreement prevents Members from taking public health measures)
than the US-Swiss paper, a number of observers had remarked on
the fact that the EU paper did not deal with the specific
issues raised in the developing country paper. It is also
worrying that on the issues of parallel imports and compulsory
licences, the EU paper uses language almost identical to that of
the US-Swiss coalition paper.
5. CONSULTATIONS CONTINUE ON THE ROAD TO DOHA
Given the wide differences between the positions of the
developing countries on the one hand, and the US-Swiss coalition
on the other, further intensive consultations are inevitable. A
number of observers see the EU taking on a bridging role between
the developing countries, on the one hand, and the US-led
coalition, on the other. It is understood that consultations are
already underway, and that the EU has been meeting with
developing countries to discuss possible compromise on this
issue. If the EU and developing countries were able to come to
agreement on a text for a Ministerial declaration, it would
isolate the US-led coalition.
Many developing country diplomats expressed disappointment at
the US-led coalition paper. One observer was heard remarking
that US and Switzerland had been hard at work building up an
"anti-consensus coalition," against the broad support for a
separate Ministerial Declaration on TRIPS and public health.
Indeed, they managed to recruit the Czech Republic and New
Zealand to sponsor the second part of their non paper.
The Special Discussion and the informal meeting were chaired by
Ambassador Alejandro Jara of Chile, in the absence of TRIPS
Council chairman, Ambassador Boniface Chidyausiku of Zimbabwe.
Ambassador Jara is expected to brief Ambassador Chidyausiku on
26 September, on his perceptions of the recent meetings. In
concluding remarks at the meetings, Ambassador Jara had said
there was broad support for a separate Ministerial Declaration
on TRIPS and public health, and on this point, he would seek
consultations with the Chairman of the General Council,
Ambassador Stuart Harbinson. It has been said that Mr Harbinson
may circulate on 26 September a draft text for the Ministerial
Declaration, as part of the overall preparatory process for
Doha, and the question will be how the issue of TRIPS and public
health is to be handled within the General Council process.
The issue of TRIPS and public health will have an influence on
the broader negotiations for Doha. The US and the EU have made
clear their intention to launch a new round of negotiations (of
new agreements on issues such as competition, investment and
transparency in government procurement) at the Doha Ministerial
Conference, but as an African diplomat put it, "we see this as a
confidence building exercise. If we cannot even get
clarification on provisions of an existing Agreement, how can we
talk about negotiating new agreements?"
Developing country diplomats also point to increasing public
opinion against the TRIPS Agreement. One Latin American diplomat
said, "If we are not even able to agree to address this life and
death issue, the credibility of the TRIPS Agreement is at risk.
Perhaps, in the near future, we will have to deal with the
problem of the TRIPS Agreement as a whole."
************************************************************
This material is being reposted for wider distribution by
Africa Action (incorporating the Africa Policy Information
Center, The Africa Fund, and the American Committee on Africa).
Africa Action's information services provide accessible
information and analysis in order to promote U.S. and
international policies toward Africa that advance economic,
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