May 27, 1998 Department of State cable: REVISED DRUG STRATEGY AT W.H.O.: ATMOSPHERICS OF THE DEBATE, AND RECOMMENDED PLAN OF ACTION

CONFIDENTIAL RELEASED IN FULL
CONFIDENTIAL PTQ1906

PAGE 01 GENEVA 03470 01 OF 09 271621Z ACTION 10-00

425261 271705Z /38 O 271615Z MAY 98

FM USMISSION GENEVA
TO SECSTATE WASHDC IMMEDIATE 6208 INFO IO COLLECTIVE AMEMBASSY LONDON
AMEMBASSY BRASILIA
AMEMBASSY BUENOS AIRES AMEMBASSY PRETORIA AMEMBASSY HARARE
AMEMBASSY LILONGWE AMEMBASSY LUSAKA
AMEMBASSY WINDHOEK AMEMBASSY BERN
AMEMBASSY CANBERRA
AMEMBASSY STOCKHOLM AMEMBASSY TOKYO AMEMBASSY OSLO
AMEMBASSY BRUSSELS AMEMBASSY BONN
AMEMBASSY OTTAWA AMEMBASSY CAIRO CDC ATLANTA

CONFIDENTIAL SECTION 01 OF 09 GENEVA 003470 FOR UNVIEi FODAG, UNEP, ICAO, UNESCO MISSIONS

UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: EDWARD W. HOLMES DATE/CASE ID: 26 MAY 1999 199802817
UNCLASSIFIED

n/a FOR STATE IO (SOUTHWICK, BOYER, BLODGETT, BLACKWOOD), EUR, ARA, AF, EAP, NEA

DEPT PLEASE PASS TO DOC (PTO, ZALIK), DEPT PASS TO USTR (BURCKY )
DEPT PASS TO USAID (G/PHN -DAULAIRE, GILLESPIE, RIGGS-PERLA, GIBB, BONI)
DEPT PASS TO HHS (HOHMAN, SATCHER, VOGEL), NIH (STAHELI, BALDWIN), FDA (HOLSTON, NIGHTINGALE)
CDC FOR BLOUNT, GAYLE

E.O. 12958: DECL: 1/1/05

TAGS: AORC, ETRD, ECON, WHO

SUBJECT: REVISED DRUG STRATEGY AT W.H.O.: ATMOSPHERICS OF THE DEBATE, AND RECOMMENDED PLAN OF ACTION

REF: A) GENEVA 3128 B) GENEVA 3151 C) STATE 83664 D) GENEVA 3256 E) GENEVA 3338 F) GENEVA 3406

CLASSIFIED BY AMBASSADOR GEORGE MOOSE FOR REASONS 1.5 B AND D.

SUMMARY

1. (U) THIS IS AN ACTION CABLE (SEE PARAS 23-25). THIS REPORT ADDS IMPRESSIONS, COMMENTS AND RECOMMENDATIONS TO THE DEBATE SUMMARIES INCLUDED IN REFTELS E AND F.

2. (C) THE REVISED DRUG STRATEGY RESOLUTION (EB101.R24), FORWARDED BY THE JANUARY EXECUTIVE BOARD, TO THE WORLD HEALTH ASSEMBLY (WHA), PROMPTED THE MOST DIFFICULT NEGOTIATIONS DURING THE 51ST WHA. (REFTELS)

DRAFTING GROUP SESSIONS LASTED WELL INTO THE NIGHT AND FAILED TO REACH COMPLETE CONSENSUS ON THE RESOLUTION.

HHS SECRETARY SHALALA AND AMBASSADOR MOOSE BOTH RAISED THE ISSUES WITH COUNTERPARTS IN GENEVA, PUSHING FOR A REASONABLE NEGOTIATED OUTCOME. THE MOST OBJECTIONABLE LANGUAGE WAS SUPPORTED BY THE SOUTH AFRICAN, ZAMBIAN, BOTSWANAN AND NAMIBIAN DELEGATIONS AND INVOLVED THE STATEMENTS THAT PUBLIC HEALTH SHOULD HAVE PRIMACY OVER COMMERCIAL INTERESTS UNDER WTO TRADE AGREEMENTS SUCH AS THE TRIPS ( TRADE-RELATED ASPECTS OF INTELLECTUAL PROPERTY RIGHTS). THE PROBLEM FOR THE US AND OUR ALLIES WAS NOT WITH THE SENTIMENT OF THE STATEMENT, BUT RATHER THE LINKAGE OF THE SPECIFIC WORDING TO THE TRIPS AGREEMENT ITSELF, THEREBY POTENTIALLY UNDERMINING INTELLECTUAL PROPERTY RIGHTS (IPR). IN THE END, FULL COMMITTEE DEBATE DID NOT LEAD TO CONSENSUS, HOWEVER THE WHA VOTED TO CONVENE AN "AD HOC WORKING GROUP" TO REVIEW OPTIONS AND REDRAFT THE RESOLUTION FOR PRESENTATION TO THE JANUARY 1999 SESSION OF THE WHO EXECUTIVE BOARD.

3. (C) MISSION RECOMMENDS A USG STRATEGY TO PREPARE FOR INPUT INTO THE AD HOC GROUP DELIBERATION, INCLUDING

1) IMMEDIATELY RECONSTITUTE THE WASHINGTON-BASED INTERAGENCY GROUP ON TRADE AND PHARMACEUTICALS IN ORDER TO DISCUSS THE PLAN OF ACTION FOR DEALING WITH REDRAFTING THE RESOLUTION;

2) RAPID USTR REVIEW OF A PROBLEMATIC W.H.O. PAPER ON "GLOBALIZATION AND ACCESS TO DRUGS;"

3) USG INTERAGENCY GROUP REVIEW OF ALL PAPERS PREPARED BY W.H.O. FOR ITS AD HOC WORKING GROUP TO ENSURE THAT THEY ARE FAIR AND BALANCED (MISSION GENEVA WILL INFORM THE DG-ELECT DR. BRUNDTLAND AND THE SECRETARIAT OF THE IMPORTANCE OF W.H.O. IMPARTIALITY);

4) ENSURE ACTIVE U.S. PARTICIPATION AT W.H.O. REGIONAL MEETINGS AND WORKING GROUPS WHERE THE ISSUE IS BEING CONSIDERED;

5) HAVE USTR BACKUP ALL U.S. DELEGATIONS DEALING WITH REDRAFTING THE RESOLUTION OR DISCUSSING TRIPS;

6) PUSH THE PHARMACEUTICAL INDUSTRY TO ARGUE ITS POINTS MORE CONVINCINGLY IN DEVELOPING COUNTRIES, AND ESPECIALLY DEAL WITH THEIR CONCERNS ABOUT LOCAL DRUG AVAILABILITY AND PRICING;

7) INITIATE FORMAL DISCUSSIONS WITH THE CONCERNED NGO COMMUNITY; AND

8) DEVELOP, WITH OUR ALLIES AND OTHERS, AN ACTIVE DIALOGUE ON TRADE, IPR, AND PHARMACEUTICALS INCLUDING BOTH THE TRADE AND HEALTH SECTORS.

END SUMMARY.

DRAFTING GROUP SESSIONS

4. (C) THE DRAFTING GROUP ON THE REVISED DRUG STRATEGY, CHAIRED BY DR. J. F. GIRARD (FRANCE), MET EVERY DAY DURING THE WHA, AND OFTEN SEVERAL TIMES EACH DAY. THE U.S. WAS REPRESENTED IN THE DRAFTING GROUP BY DR. STUART NIGHTINGALE, FDA, ACCOMPANIED BY MISSION HEALTH ATTACHE AND A USAID REPRESENTATIVE. ON FRIDAY, MAY 15, 1998, AFTER 15 HOURS OF NEGOTIATIONS, THE GROUP FINALLY COMPLETED A BRACKETED REDRAFTED RESOLUTION THAT COULD BE PRESENTED TO COMMITTEE A OF THE WHA. THE DOCUMENT REFLECTED GENERAL AGREEMENT EXCEPT IN 2 AREAS: IN OPERATIVE PARAGRAPH 1, SECTION (2), THE ORIGINAL RESOLUTION (EB101.R24) REFERRED TO THE PRIMACY OF PUBLIC HEALTH OVER COMMERCIAL INTERESTS IN PHARMACEUTICAL AND HEALTH POLICIES AND TO REVIEW THEIR OPTIONS UNDER TRIPS. WHILE ON THE SURFACE THIS LANGUAGE SEEMS INNOCENT, IN FACT, THE SPECIFIC WORDING COULD HELP TO UNDERMINE INTELLECTUAL PROPERTY RIGHTS (IPR) GUARANTEED UNDER THE WTO TRIPS AGREEMENT, AND COULD EVENTUALLY HAVE WIDE-RANGING IPR IMPLICATIONS; THE SECOND DIFFICULT SECTION WAS PARAGRAPH 2, SECTION (6) WHICH, IN EFFECT, DIRECTS W.H.O. TO ADVISE' MEMBER STATES ON INTERPRETATION OF WTO AGREEMENTS. THIS IS A PROBLEM, IN THAT WE BELIEVE THAT TRADE EXPERTS AT WTO, NOT HEALTH EXPERTS, SHOULD BE THE PRIMARY INTERPRETERS OF TRADE AGREEMENTS (FOR EXACT WORDING AND USG POSITION, SEE REFTEL C).

5. (C) THE U.S. CHIEF DELEGATE TO THE WHA, SECRETARY DONNA SHALALA, DURING EACH OF HER MANY BILATERAL MEETINGS AND LUNCH/DINNER ENGAGEMENTS, PRESSED THE U.S. POSITION AND OUR DESIRE TO FIND RESOLUTION LANGUAGE ACCEPTABLE TO ALL PARTIES. CONSENSUS WAS ACHIEVED ON MOST OF THE RESOLUTION, AND A NUMBER OF THE REDRAFTED SECTIONS WERE MAJOR IMPROVEMENTS OVER THE ORIGINAL. HOWEVER, IT WAS CLEAR THAT EVEN IF THE DRAFTING GROUP HAD SEVERAL MORE DAYS, NO CONSENSUS WAS TO BE ACHIEVED ON THE WORDING OF THE TWO SECTIONS CRITICAL TO SOUTH AFRICA AND ITS NEIGHBORS, AND OPPOSED BY THE UNITED STATES AND A NUMBER OF EU COLLEAGUES (ESPECIALLY UK AND GERMANY), AUSTRALIA, AND SWITZERLAND (SEE PARA 4).

6. (C) DURING THE FINAL DAY OF THE DRAFTING GROUP, THE USDEL BECAME CONCERNED ABOUT LACK OF VOCAL SUPPORT FOR THE U.S. POSITIONS, AND MISSION OFFICERS PUT CONSIDERABLE PRESSURE ON COUNTERPARTS IN THE UK (ACTING FOR THE EU PRESIDENCY), THE NORWEGIAN MISSION, AND DG-ELECT BRUNDTLAND'S STAFF, ASKING THEM TO HELP US AVOID AN UNPLEASANT OPEN FLOOR DEBATE IN COMMITTEE OVER THE ISSUES. AT ONE POINT, AMBASSADOR MOOSE CALLED THE UK PERMREP TO REQUEST MORE ACTIVE UK AND EU INVOLVEMENT. ON THE LAST DAY OF THE DRAFTING GROUP, THE UK AND NORWAY CRANKED UP THEIR DIPLOMATIC EFFORTS AND PUSHED ALL PARTIES FOR ADOPTION OF ACCEPTABLE CONSENSUS LANGUAGE.

7. (C) IN THE END, THE HARD LINE THAT SOUTH AFRICA TOOK MADE CONSENSUS IMPOSSIBLE. DURING DISCUSSIONS, IT WAS CLEAR THAT SOUTH AFRICA, NAMIBIA, ZAMBIA, BOTSWANA, AND ZIMBABWE WERE COMMITTED TO THE EXACT WORDING THAT THE U.S. AND OTHERS FOUND THE MOST PROBLEMATIC IN THE RESOLUTION (REFTEL C).

8. (C) COMMENT: SOUTH AFRICA ARGUED THAT EVERYONE KNEW WHAT WAS WRONG WITH TRIPS, AND INSISTED THAT IT WAS IMPORTANT TO RETAIN THE PEJORATIVE REMARKS ABOUT TRADE IN THE PREAMBLE AND TO KEEP THE OPERATIVE PARAGRAPHS PHRASED IN A WAY THAT WOULD LOOK AS THOUGH MEMBER STATES NEEDED TO “END-RUN” THE TRIPS AGREEMENT IN THE INTEREST OF PUBLIC HEALTH.

SOUTH AFRICA CONTINUALLY COMPLAINED THAT THE MULTINATIONAL PHARMACEUTICAL INDUSTRY WAS ONLY INTERESTED IN ITS PROFITS. IT ALSO INAPPROPRIATELY USED EXAMPLES FROM U. S. CASES BEFORE THE FEDERAL TRADE COMMISSION AND THE NIH PARTIAL FUNDING OF DRUGS TO JUSTIFY CERTAIN PRACTICES SUCH AS "COMPULSORY LICENSING.”

9. (C) COMMENT CONTINUED. ALTHOUGH THE U.S. NEVER REFERRED PUBLICLY TO THE LEGAL SITUATION OVER THE NEW SOUTH AFRICAN MEDICINES BILL AND ITS TRIPS CHALLENGES, IT WAS CLEAR THAT MUCH OF SOUTH AFRICA'S USE OF U.S.CASE STUDIES AND MANY OF THE ARGUMENTS IT CITED WERE DEVELOPED TO HELP DEFEND THIS LEGISLATION AND ITS POLICIES IN THE INTERNATIONAL LEGAL ARENA. DR. OLIVE SHISANA, SOUTH AFRICAN DIRECTOR-GENERAL FOR HEALTH, AND ONE OF THE AUTHORS OF THE MEDICINES BILL, LED THE CHARGE FOR THE AFRICANS IN THE DRAFTING GROUP DEBATE. SHE CLEARLY HAS A VESTED INTEREST, AND CAN PRESENT CONVINCING ARGUMENTS, ESPECIALLY WHEN TALKING TO HEALTH RATHER THAN TRADE OFFICIALS. AND HER PREVIOUS TENURE AS A HEALTH OFFICER IN THE WASHINGTON DC HEALTH DEPARTMENT HAS GIVEN HER GOOD INSIGHT INTO THE U.S. NEGOTIATING STYLE. END COMMENT.

10. (C) MANY TIMES DURING THE DRAFTING GROUP DISCUSSIONS, SOUTH AFRICA AND NEIGHBORING MEMBER STATES THREATENED TO STOP THE ATTEMPT AT CONSENSUS, ADJOURN, AND GO IMMEDIATELY FOR A VOTE IN COMMITTEE ON THE ORIGINAL EB RESOLUTION (THE LANGUAGE OF WHICH WAS COMPLETELY UNACCEPTABLE TO THE USG) --SUGGESTING THAT THEY BELIEVED THEY HAD THE VOTES TO ADOPT THE RESOLUTION WITH NO CHANGE OR ATTEMPT AT CONSENSUS.

HEALTH ASSEMBLY DEBATE

11. (C) IN INTRODUCING THE AGENDA ITEM IN COMMITTEE A (A COMMITTEE OF ALL 191 MEMBER STATES), DEPUTY DIRECTOR GENERAL F. ANTEZANA AND DRAFTING GROUP CHAIR GIRARD EXPLAINED THE EXTENSIVE WORK DONE BY THE DRAFTING GROUP AND “OPENED THE DOOR” FOR REFERRAL, NOTING IT WOULD BE A SHAME TO LOSE THE CONSENSUS HAMMERED OUT ON MOST OF THE RESOLUTION JUST BECAUSE OF A FEW DISAGREEMENTS.

(NOTE: THESE COMMENTS WERE VERY HELPFUL TO THE UK AND U.S. STRATEGY OF REFERRAL BACK TO THE BOARD AS THE FIRST CHOICE FOR HANDLING THE RESOLUTION.)

12.(C) ITALY WAS CONVINCED BY THE U.S. AND UK TO MAKE THE PROPOSAL FOR REFERRAL TO THE BOARD AS THE COMMITTEE OPENED. THE U.S. THEN ENDORSED ITALY'S PROPOSAL. USDEL NIGHTINGALE ALSO PRAISED WORK LEADING TO THE CONSENSUS PARAGRAPHS IN THE DRAFTING GROUP PAPER, BUT EXPLAINED THAT IN ADDITION TO THE SEVERAL CONTENTIOUS BRACKETED PARAS, THERE WERE OTHER AREAS OF THE RESOLUTION STILL NEEDING SOME AMENDMENTS THAT, FOR THE LACK OF TIME, HAD NOT YET BEEN DEALT WITH IN THE DRAFTING GROUP. EXAMPLES INCLUDED PROBLEMS WITH THE LANGUAGE IN THE OPERATIVE PARAGRAPHS ON DRUG DONATIONS, AND ETHICAL CRITERIA FOR MEDICINAL DRUG PROMOTION. THIS WAS AN ADDITIONAL REASON FOR REFERRING THE DRAFT RESOLUTION BACK TO THE EB FOR FURTHER DISCUSSION.

13. (U) EXPECTING EASY VICTORY (DEFEAT FOR THE ITALY/U.S. PROPOSAL TO DEFER), PAKISTAN, FOLLOWED BY SOUTH AFRICA, ASKED THAT THE PROPOSAL BE PUT TO A VOTE WITHOUT FURTHER DELAY. TO THEIR ASTONISHMENT THE ITALY-U.S. MOTION FOR DEFERRAL WAS APPROVED BY A VOTE OF 39 (U.S.) -18, WITH 5 ABSTAINING.

14. (U) AFTER THE VOTE, SWAZILAND ASKED IF A QUORUM HAD BEEN PRESENT, NOTING THAT ONLY 57 WERE PRESENT AND VOTING. THE LEGAL COUNSEL SAID A QUORUM FOR VOTING WAS 91, BUT THAT THE NUMBER PARTICIPATING IN A VOTE, BY UN PRACTICE, DID NOT INDICATE WHETHER OR NOT A QUORUM WAS PRESENT AND IN ANY EVENT, ANY CHALLENGE TO A QUORUM NEEDED TO BE MADE BEFORE A VOTE AND NOT AFTERWARD. SOUTH AFRICAN AMBASSADOR SALEBI THEN ARGUED THE COMMITTEE ACTION HAD BEEN ILLEGAL AND FOR NEARLY AN HOUR SHOUTED ABUSE ON THE LEGAL COUNSEL AND CHAIR OF THE COMMITTEE (GILLIAN DURHAM OF NEW ZEALAND) AND TRIED TO PREVENT THE COMMITTEE FROM ADJOURNING.

15. (C) COMMENT: THE BEHAVIOR OF THE SOUTH AFRICAN DELEGATION DURING THE ENTIRE WEEK SUGGESTED THEY WERE UNDER VERY STRONG INSTRUCTION TO NOT TO ALLOW THIS RESOLUTION TO BE WATERED DOWN AND AMBASSADOR SALEBI'S TEMPER TANTRUM HAD TO BE SEEN TO BE BELIEVED. SEVERAL DELEGATIONS LATER SAID THAT THEY WERE CONCERNED THAT THE DISPUTE MIGHT EVEN TURN PHYSICAL. THIS IS AN EXAGGERATION THAT US MISSION HAS BEEN AT PAINS TO DISPEL. END COMMENT.

16. (C) ALTHOUGH CLEARLY HAVING LOST A BATTLE IT WAS INSTRUCTED NOT TO LOSE, THE SOUTH AFRICANS AND THEIR NEIGHBORS AGREED THE NEXT MORNING (BEFORE THE PLENARY) NOT TO FIGHT THE EB REFERRAL FURTHER, AFTER THE SECRETARIAT PROPOSED CONVENING AN AD HOC WORKING GROUP TO AIR THE ISSUES AND REDRAFT THE RESOLUTION BEFORE THE JANUARY EB MEETING. ALL PARTIES AGREED, AND THE WHA CLOSED WITHOUT FURTHER CONTENTIOUS DEBATE.

AD HOC WORKING GROUP IS CREATED

17. (U) AT A 2-DAY "ORGANIZATIONAL" SESSION OF THE EXECUTIVE BOARD ( WHICH INCLUDES THE U.S. MEMBER, DR. JO IVEY BOUFFORD) CONVENED ON MAY 18-19, THE DRAFTING GROUP CHAIR, DR. GIRARD, HELD A 2-HOUR MEETING TO SET UP THE TERMS OF REFERENCE FOR THE WORKING GROUP. JAPAN, THE U.S., AUSTRALIA, AND BURKINA FASO ARGUED FOR MAINTAINING AN OPEN, "EVERY CONCERNED PARTY SHOULD COME" GROUP. SOUTH AFRICA, ON INSTRUCTIONS, SAID THAT THE WORKING GROUP ITSELF SHOULD ONLY BE COMPOSED OF MEMBER STATES AND RELUCTANTLY AGREED TO WTO, WIPO, INDUSTRY AND NGO INPUT TO THE DISCUSSIONS. THE CONCLUSIONS OF THE MEETING WERE THEN APPROVED BY AN EB DECISION ( PARA 18).

TERMS OF REFERENCE FOR THE AD HOC WORKING GROUP

18. (U) THE FOLLOWING DECISION WAS TAKEN BY THE BOARD: "THE EXECUTIVE BOARD DECIDED TO ESTABLISH AN OPEN-ENDED AD HOC GROUP TO EXPLORE THE MANY COMPLEX ISSUES RAISED BY EB101.R24 ON THE REVISED DRUG STRATEGY. THE GROUP WILL TAKE NOTE OF THE OUTCOME OF CONTACTS PURSUED BY W.H.O.WITH OTHER PARTNERS, INCLUDING THE WORLD TRADE ORGANIZATION (WTO), THE WORLD INTELLECTUAL PROPERTY ORGANIZATION (WIPO), INDUSTRY AND NONGOVERNMENTAL ORGANIZATIONS. THE OBJECTIVE OF THE AD HOC GROUP'S WORK WILL BE TO DRAFT A RESOLUTION FOR CONSIDERATION BY THE EXECUTIVE BOARD AT ITS 103RD SESSION IN JANUARY 1999.

HAVING STUDIED TOGETHER WITH THE DIRECTOR-GENERAL AND THE CHAIRMAN OF THE EXECUTIVE BOARD VARIOUS OPTIONS FOR ACHIEVING THIS GOAL, THE EXECUTIVE BOARD HAS ESTABLISHED A TWO-TIERED SYSTEM OF WORKING, AS FOLLOWS:

1) THE AD HOC WORKING GROUP ON THE REVISED DRUG STRATEGY WILL BE OPEN TO ALL MEMBER STATES WISHING TO PARTICIPATE AND IT WILL MEET IN GENEVA;

2) A SUB-GROUP WILL BE CREATED COMPRISING THE CHAIRMAN OF THE DRAFTING GROUP ESTABLISHED DURING THE 51ST WORLD HEALTH ASSEMBLY, AND TWO MEMBER STATES FROM EACH REGION, OF WHICH AT LEAST ONE WILL BE A MEMBER OF THE EXECUTIVE BOARD. THIS GROUP WILL ASSIST W.H.O. IN ITS CONTACTS WITH RELEVANT INTERESTED PARTNERS;

3) THE SECRETARIAT WILL PREPARE A CONCISE REPORT FOR THE REGIONAL COMMITTEES ON WHICH DISCUSSIONS AND DECISIONS SHOULD BE BASED;

4) THE REGIONAL COMMITTEES SHOULD DISCUSS THIS ISSUE LATER THIS YEAR, AT WHICH TIME THEY WILL NOMINATE THEIR REPRESENTATIVES FOR THE SUBGROUP;

5) THE AD HOC GROUP WILL MEET SHORTLY AFTER THE REGIONAL COMMITTEES AND PRIOR TO OR SHORTLY AFTER THE OPENING OF THE 103RD SESSION OF THE EXECUTIVE BOARD IN JANUARY 1999 IN ORDER TO FINALIZE THE DRAFT RESOLUTION TO BE CONSIDERED BY THE EXECUTIVE BOARD;

6) THE EXECUTIVE BOARD NOTED THAT ADEQUATE FINANCIAL RESOURCES WILL NEED TO BE PROVIDED FOR THE AFOREMENTIONED ACTIVITIES;

7) THE WORK OF THE SECRETARIAT AND W.H.O. MEMBER STATES ON THIS ISSUE MAY NEED TO CONTINUE BEYOND JANUARY 1999.

COMMENTS AND CONCERNS

19. (C) ONE OF THE REAL DISAPPOINTMENTS TYPICAL OF ALL W.H.O. DISCUSSIONS ON PHARMACEUTICALS, WAS A LACK OF CLARITY OR INTERNAL SECRETARIAT EXPERTISE CONCERNING TRADE-RELATED ISSUES. ALTHOUGH WTO EXPERTS ATTENDED THE DRAFTING GROUP MEETINGS, THEY WERE NOT GIVEN THE FLOOR TO SPEAK OR CLARIFY INTERPRETATIONS OF TRIPS OR WTO AGREEMENTS. THIS MUST BE RECTIFIED IN ALL FUTURE DISCUSSIONS. WITH THE EXCEPTION OF SOUTH AFRICA AND THE U.S. (IN WHICH BOTH DELEGATIONS WERE WELL BRIEFED), MOST DELEGATIONS DID NOT HAVE ENOUGH TRADE-RELATED EXPERTISE TO NEGOTIATE LANGUAGE RELATED TO TRADE OR IPR.

20. (C) IN AN OUTRAGEOUS AND BIASED ATTEMPT TO MOLD INTERNATIONAL OPINION, THE DRUG ACTION PROGRAM (DAP) AT W.H.0. PUBLISHED A DOCUMENT, “GLOBALIZATION AND ACCESS TO DRUGS: IMPLICATIONS OF THE WTO/TRIPS AGREEMENT,” WITH THE DISCLAIMER THAT IT WAS NOT A FORMAL PUBLICATION OF W.H.O.AND ALL VIEWS WERE THOSE OF THE TWO AUTHORS ONLY, GERMAN VELASQUEZ AND PASCALE BOULET. HOWEVER SOUTH AFRICA, AND MANY OTHERS ARE USING THIS DOCUMENT TO CLAIM THAT W.H.O. AGREES THAT TRIPS IS DETRIMENTAL TO PHARMACEUTICAL AVAILABILITY IN DEVELOPING COUNTRIES.

21. (C) THE DAP, DIRECTED BY JONATHAN QUICK (AMCIT), AND THE DIVISION OF DRUG MANAGEMENT AND POLICIES (DMP), DIRECTED BY DR. IDANPAAN-HEIKKILA (FINLAND) HAVE COMBINED RESPONSIBILITIES FOR PHARMACEUTICAL AND TRADE ISSUES AT W.H.O. DEPUTY DG ANTEZANA (BOLIVIA) AND THE NEW RUSSIAN ASSISTANT DG, DR. V. LEPAKHIN, ALSO HAVE ILL-DEFINED SUPERVISORY DUTIES IN THIS AREA. (COMMENT: BASED ON HALLWAY DISCUSSIONS AND OVERHEARD COMMENTS, WE ARE CONVINCED THAT DR. IDANPAAN-HEIKKILA [PROTECT] WILL BE HELPFUL TO THE U.S. POSITION, BUT THAT DR. QUICK SUPPORTS THE SOUTH AFRICAN POSITION IN THE TRIPS AND OTHER TRADE DEBATES. DR. QUICK ON SEVERAL OCCASIONS INDICATED HIS ENTHUSIASTIC SUPPORT OF THE CONCLUSIONS IN THE BIASED AND INACCURATE DRUGS/WTO DOCUMENT CITED IN PARA 20. END COMMENT.)

22. (C) THE MISSION HAS BEEN WORKING CLOSELY WITH IFPMA, PHARMA, AND OTHER INDUSTRY REPRESENTATIVES BOTH TO INDICATE OUR SUPPORT OF TRIPS AND IPR ISSUES, AND TO EXHORT THEM TO TAKE A CONSTRUCTIVE AND NON-CONFRONTATIONAL ROLE IN COUNTERING THE ARGUMENTS MADE BY SOUTH AFRICA AND ITS ALLIES ON TRADE AND PHARMACEUTICAL ISSUES. DR. HARVEY BALE FROM IFPMA AND MR. TOM BOMBELLES FROM PHARMA HAVE HAD MULTIPLE MEETINGS WITH MISSOFFS AND THE AMBASSADOR, AND WE FORESEE A GOOD WORKING RELATIONSHIP WITH INDUSTRY REPRESENTATIVES IN GENEVA.

RECOMMENDATIONS

23.(C) THE ISSUE OF WTO TRADE AGREEMENTS, SUCH AS TRIPS, AND ACCESS TO DRUGS WILL BE A MAJOR POINT OF DEBATE IN GENEVA IN UPCOMING MONTHS. IT ALSO RAISES OTHER IMPORTANT AND COMPLEX ISSUES REGARDING DRUG AVAILABILITY AND PRICING IN DEVELOPING COUNTRIES. THE USG, IN CONSULTATION WITH OUR ALLIES, HAVE BOTH THE RESPONSIBILITY AND OPPORTUNITY TO DEVELOP A POSITION ON THE REVISED DRUG STRATEGY RESOLUTION THAT WILL ENABLE HEALTH AND TRADE TO MOVE TOGETHER IN A COMPATIBLE MANNER, NOT BE USED TO FOSTER A NORTH-SOUTH TRADE DISPUTE USING HEALTH AS A PROXY.

24. (C) WE RECOMMEND THE FOLLOWING ACTIONS: IMMEDIATELY RECONSTITUTE THE INTERAGENCY GROUP ON TRADE AND PHARMACEUTICAL ISSUES IN WASHINGTON, INCLUDING HHS, FDA, STATE, USAID, USTR, COMMERCE (PTO) AND OTHER USG AGENCIES AS APPROPRIATE. INDUSTRY INPUT SHOULD BE SOUGHT FREQUENTLY ON AN "AS NEEDED" BASIS. THE GROUP'S FIRST TASK SHOULD BE TO REVIEW THE CURRENT DRAFT OF THE RESOLUTION AND THE WORK PLAN FOR THE W.H.O.AD HOC WORKING GROUP, AS WELL AS DEVELOP A PLAN OF ACTION. USTR AND OTHER EXPERTS SHOULD CAREFULLY REVIEW THE W.H.O. PAPER ON "GLOBALIZATION AND ACCESS TO DRUGS" (PARA 20), AS WELL AS ANY OTHER WORKING DOCUMENTS AND WHERE NECESSARY, PREPARE SPECIFIC TALKING POINTS TO REFUTE ARGUMENTS ATTEMPTING TO UNDERMINE THE TRADE AGREEMENTS. AS OUTLINED IN PARA 18, SUBPARA 3, THE SECRETARIAT WILL BE PRODUCING A DOCUMENT ON TRADE AND IPR ISSUES FOR CONSIDERATION BY THE SIX REGIONAL COMMITTEES WHICH MEET IN SEPTEMBER. WE SHOULD MAKE EVERY EFFORT TO OBTAIN AND HAVE TRADE LAWYERS AND HEALTH EXPERTS CRITIQUE THIS PAPER, AND WE SHOULD INSIST THAT IT BE UNBIASED AND FAIRLY RELAY THE FACTS. (MISSION WILL STAY IN CLOSE CONTACT WITH DG -ELECT BRUNDTLAND AND THE W.H.O.SECRETARIAT TO ENSURE THAT ALL BACKGROUND PAPERS ARE FACTUAL, NOT IDEOLOGICAL.) THE U.S. SHOULD BE REPRESENTED BY SOMEONE WELL BRIEFED ON THIS ISSUE AT EACH REGIONAL COMMITTEE MEETING IN SEPTEMBER. WE BELONG TO THE AMERICAS AND WESTERN PACIFIC REGIONS, AND ALWAYS ATTEND THE EUROPEAN MEETING AS AN OBSERVER. WE SHOULD DETERMINE IF IT WOULD BE POSSIBLE TO ATTEND IN SOME CAPACITY, THE OTHER THREE REGIONAL MEETINGS, MOST ESPECIALLY AFRICA. WE SHOULD ATTEMPT TO BE A MEMBER OF THE SMALLER SUB-GROUP OF THE AD-HOC WORKING GROUP. IF THIS IS NOT FEASIBLE, WE SHOULD ATTEND ALL OF ITS MEETINGS AS AN OBSERVER.

ALL MEETINGS OF THE WHOLE AD HOC WORKING GROUP SHOULD BE ATTENDED (IN THE CHAIR) BY A HEALTH EXPERT, MOST APPROPRIATELY DR. STUART NIGHTINGALE, FROM THE FDA. DESPITE THE TRADE' ORIENTATION OF THE ISSUE, IT WOULD BE UNWISE, AT THIS TIME, TO HAVE THE US REPRESENTED UP FRONT BY A TRADE EXPERT. NIGHTINGALE HAS THE EXPERTISE AND EXPERIENCE TO CARRY THE ISSUE FORWARD AND HAS A CLOSE PERSONAL AND WORKING RELATIONSHIP WITH DR. IDANPAAN-HEIKKILA. HE SHOULD BE BACKED BY A USTR EXPERT AND OTHER MISSION, PTO, HHS AND STATE PERSONNEL AS NEEDED. THE PHARMACEUTICAL INDUSTRY SHOULD BE CARRYING MORE OF ITS OWN WATER ON THIS ISSUE, ESPECIALLY IN DEVELOPING COUNTRIES, AND NOT SOLELY DEPEND ON THE ARGUMENT THAT “IPR PROTECTS PROFITS THAT THEN ARE USED FOR DEVELOPMENT OF NEW DRUGS IN THE FUTURE.” THE SOUTH AFRICANS AND OTHERS ARE MOSTLY CONCERNED ABOUT AVAILABILITY OF DRUGS NOW, NOT 10 YEARS FROM NOW. PROBLEMS RELATED TO LOCAL AVAILABILITY AND PRICING OF DRUGS THAT ARE UNRELATED TO TRIPS WILL UNDOUBTEDLY REQUIRE FURTHER DISCUSSION. INITIATE FORMAL DISCUSSIONS WITH RESPONSIBLE NGO AND PVO GROUPS. DEVELOP, WITH OUR ALLIES AND OTHERS, AN ONGOING DIALOGUE ON PHARMACEUTICAL AND TRADE ISSUES WITH BOTH THE HEALTH AND TRADE SECTORS, AND CONSIDER ACTIVE, AND EARLY, CAPITAL DEMARCHES AS APPROPRIATE TO GAIN SUPPORT FOR CONSENSUS LANGUAGE FOR THE REDRAFTED RESOLUTION.

25. (C) WE BELIEVE THAT SOUTH AFRICA AND ITS NEIGHBORS (AS WELL AS EGYPT AND INDIA, AND POSSIBLY ARGENTINA, BRAZIL AND OTHERS) WILL TAKE A VERY HARD LINE ON THE NEGOTIATION OF THE REVISED DRUG STRATEGY RESOLUTION. ALTHOUGH THEIR POSITIONS ARE PRIMARILY MOTIVATED BY TRADE (AND ANTI-IPR), PROBLEMS DO REMAIN IN THE LOCAL AVAILABILITY OF DRUGS COVERED BY WTO AGREEMENTS, AND THE SOUTH AFRICAN'S CONCERN ABOUT TRIPS HAS SOME BASIS IN FACT. WE MUST BE WELL PREPARED, THEREFORE, FOR THE DISCUSSIONS AND WORK ON THIS ISSUE OVER THE NEXT SEVEN MONTHS IN THE RUN-UP TO THE JANUARY EXECUTIVE BOARD.

MOOSE
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