Talks On TRIPS and Health Stall As Deadline Nears

Negotiations to expand the availability of medicines under a World Trade Organisation agreement on intellectual property rights by 31 March broke down Monday after informal consultations showed no compromise forthcoming, according to diplomatic sources in Geneva.

At issue is an amendment of the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) to allow countries producing generic pharmaceuticals under compulsory license to export those products to other countries in need. Failure to resolve differences on the issue could have a negative impact on the outcome of the December WTO ministerial in Hong Kong, Kenya reportedly said in the consultations.

After parties failed to budge from their positions at Monday’s informal consultations on TRIPS and public health, TRIPS Council Chair Tony Miller of Hong Kong dropped plans to reconvene a suspended council meeting on the issue before a 31 March deadline, according to sources. That deadline set in June 2004 (which was the previous deadline) was the point at which members were to amend the TRIPS agreement to formalize a waiver of a TRIPS provision prohibiting the export of products produced under compulsory license. The waiver was agreed to on 30 August 2003, and the change is seen as consistent with the 2001 Doha Declaration on TRIPS and Public Health.

Miller said he would check in with members on 29 March to see if further consultations are desired for 30-31 March. The formal meeting could be reconvened if there is a prospect of consensus, sources said.

Monday’s consultation, which was attended by about 40 delegates, followed the suspended formal TRIPS Council meeting held on 8-9 March.

At the Monday meeting, no progress was seen on the provisions of the amendment, how the amendment would be made, or how the chair’s statement read out at the time of the waiver should be reflected, according to sources. Parties could not agree whether the amendment should be made by adding to TRIPS Article 31 (on uses without authorisation of the rights holder), or by putting the waiver in an annex and referring to it in the text or in a footnote in the body of the agreement.

Kenya argued that the African members’ proposal for an amendment is a direct translation of the 30 August 2003 waiver, with some small, technical differences, including deletions of redundant pieces. The Philippines said the African proposal is an accurate reflection of the 30 August decision, but added that the question of limiting the amendment to technical changes is debatable.

But Switzerland and the United States said their fears that countries want to renegotiate provisions of the waiver were confirmed. They do not want any weakening of safeguards preventing the diversion of medicines to inappropriate markets. The two countries along with the European Union said they could agree to some deletions of truly redundant parts of the text.

Monday’s discussion included a debate over the “life and death” urgency of the issue for many countries whose populations are in critical need, and the possible immorality of delaying agreement on the amendment. Switzerland countered the charge of lost morality, arguing that members agreed to the waiver and are amending their laws and regulations to allow its implementation, a source said.

Besides the late March consultation, the next formal meetings of the council are tentatively scheduled for 14-15 June and 25-26 October.