[afro-nets] Talks on TRIPS and Health Stall as Deadline Nears

[Claudio Schuftan <CLAUDIO@hcmc.netnam.vn>]

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 consulta-
tions 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 coun-
tries 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 sus-
pended 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 pro-
vision prohibiting the export of products produced under compul-
sory 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 ques-
tion of limiting the amendment to technical changes is debat-
able.

But Switzerland and the United States said their fears that
countries want to renegotiate provisions of the waiver were con-
firmed. 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 mo-
rality, arguing that members agreed to the waiver and are amend-
ing 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.