Chances Diminish For Solution On TRIPS And Public Health Before Hong Kong

Key officials in Geneva indicate that World Trade Organization members are not likely to find a compromise on a permanent amendment to global trade rules in order to allow poor countries to import affordable medicines in time for the December WTO ministerial in Hong Kong.

There is no formal deadline for items to be included in the Hong Kong agenda, but “in practical terms any text to be taken to Hong Kong should be completed by about 2 December at the latest,” a WTO official said. That is because the following week people will have started travelling, he said. The ministerial will be held from 13 to 18 December. The public health issue is not required to be part of Hong Kong agenda.

At issue is a mandate for members to make a permanent amendment to the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) to allow countries to import cheap generics under compulsory licenses when deemed necessary. Such a waiver was mandated to be made permanent by 2002 under paragraph six of the 2001 Doha Declaration on TRIPS and Public Health. A temporary waiver was agreed on 30 August, 2003.

Negotiations at this point are centred on the status of a statement read out by the chairman at the time of adoption.

A wide variety of group and bilateral meetings on the issue are taking place but so far there have been no breakthroughs, according to sources. A key Geneva source familiar with the negotiations said that there has been no movement among interested members and that “nothing was on the table.”

The source said that most likely there would not be any settlement before Hong Kong, adding that the African group last week held inconclusive discussions and referred the issue to this week’s African ministerial meeting in Arusha, Tanzania.

The Arusha meeting is being held to prepare for the Hong Kong ministerial. A developing country official said that the African ministers would evaluate the situation and give directions for further negotiations, which may not start until next week.

The official noted that so far there was “no agreement on anything.” An EU delegate confirmed this.

The United States appears to have pressured the African group to have a view by Wednesday on a US proposal to, in one way or the other, accommodate or reflect the chairman’s statement in the amendment, one informed Geneva source said. But this could not be confirmed with the US by press time.

Developing countries such as Argentina, Brazil, India and the Philippines have indicated that they are worried that the African group will give in to US pressure, referring to a current uncertainty as to what move the group will make next.

The developing country official said he was not aware of any splits within the African group, but said there could be small differences.

Ragui El-Etreby, first secretary of the permanent mission of Egypt, said in an interview that it was expected that the TRIPS and public health issue would be discussed in Arusha this week, but said nobody has pressured the African group to reach a specific solution within a certain deadline.

El-Etreby said that it would be “magnificent” if a solution could be reached before the Hong Kong ministerial but said it is questionable, and would not be sought at the “expense of our interests and concerns.” The African group did not see this as pressure but rather as an opportunity, he said.

Since July, Egypt has been the co-ordinator of the African group, a function that rotates between the members every six months. Nigeria is the permanent focal point of the group on TRIPS.

“The pressure is on all of us,” the Geneva source familiar with the negotiations said, adding that the pressure was not only on the African group but that everyone was interested in finding a solution before Hong Kong.

Talks Move On Parallel Tracks

Talks are proceeding along two tracks of meetings. One involves the TRIPS Council chairman, who is holding informal consultations with the United States, European Union and the African Group, and the second, a series of bilateral meetings with the African group.

On 22 November the chairman met with a delegate from South Africa representing the African group to be briefed on the situation, a Geneva source familiar with the negotiations said.

The African group’s recent bilateral meetings with main players in the negotiations, including the US, the EU, India and Brazil, have also not lead to any specific outcome, sources said.

Some member states of the African group do not agree with what the United States is proposing and fear that the US is trying to get more than it got on 30 August, 2003, a developing country official said.

Compromise Crucial Before Hong Kong?

African governments have stressed the importance of reaching a compromise on making the waiver permanent before Hong Kong. The TRIPS and public health issue is not part of the single undertaking in Hong Kong, but the African delegate feared that if the issue was not resolved before Hong Kong, it could be used as a trade-off in other areas such as agriculture.

“This is an African issue, people are dying of HIV/AIDS…. There is a need for us to have a solution,” one African delegate involved in the discussions said. He said that the “ultimate object” of the African group is to resolve the issue before Hong Kong.

The African delegate said that the African group hoped that the EU or the US would compromise and move towards the African position, but he also signaled that the African group “had to look at reality.”

The delegate said that “we should conclude it in a hurry” but also emphasised that it was important to get it right. In any case there should be a focus on “substance” and not the emotional aspects of the negotiation, he said.

However, another Geneva source said that the US and EU were “not giving anything,” making a solution before Hong Kong questionable. The EU and the US are also not likely to fight each other on the issue of the chairman’s statement, the source said.

Brazil, India and Argentina Concerned

On 17 November, the African group met with the US and the EU, and on 18 November it met with Brazil and India in an “interactive session” with Argentina, the African delegate said.

The delegate said that on 18 November, TRIPS and public health issues were discussed among other things, as it was important for these countries to “have a common [understanding] of what the developing agenda is all about,” noting that that had to be clear before the Hong Kong meeting.

At the meeting, “Brazil, India and Argentina explained why one should not accept the proposal by the US to include a reference to the chairman’s statement in the amendment, as the US proposal would upgrade the legal status of the chairman’s statement,” a participant in the meeting said.

A Geneva source said that at the meeting the African group had not given any indication as to its position at the moment. Argentina, Brazil and India met with the African group to show their availability to them in terms of legal questions regarding the chairman’s statement, the source said.

“On EU and the US, we have had series of consultations and the group is ready to continue to engage not only with EC and the US but also with any member,” the African delegate said, noting that there was an African consensus on the amendment and nobody had said it should drop its proposal.

Where To Put The Chairman’s Statement?

The African delegate said that the issue at hand is the chairman’s statement, adding that without it there would probably not have been an agreement on the paragraph six issue in the first place, but the question was “where do you put it.”

The African group wants the 2003 situation to “re-create itself,” the delegate said, meaning that the chairman should simply read out the statement again. The chairman’s statement is not mentioned in the African proposal, which is the only formal proposal tabled on this issue.

Countries such as Brazil, India and the Philippines support the African proposal as a good basis for further talks, a Philippine delegate said.

And the EU wants an interpretation clause between the chairman’s statement and the TRIPS agreement paragraph six, the African delegate said.