Friday, 12 February 2010
Around 100 Members of the World Trade Organization attended informal consultations today in Room E (a mainstay of the green room consultations) to discuss the implementation of Paragraph 6 mechanism which was created to be an “an expeditious solution” for “WTO members with insufficient or no manufacturing capacities in the pharmaceutical sector” that faced difficulties in in “making effective use of compulsory licensing under the TRIPS Agreement”.
The impetus for this informal consultation, held from 10 AM to 12 PM Geneva time, arose out of demands by the African Group, Brazil, Ecuador, India, the Least-Developed Country Group and Pakistan (please see informative piece by IP-Watch: WTO Members To Consider Review Of TRIPS Public Health Amendment) at a TRIPS Council meeting held in October 27-28, 2009 in Geneva for a review of the Paragraph 6 mechanism. At the TRIPS Council in October, the demandeurs for the review noted they did not pre-judge the effectiveness of the Paragraph 6 mechanism. Perhaps the glaring sub-text to this request for a review is that the the one time use of the Paragraph 6 mechanism to ship ARVs from Canada to Rwanda has not inspired much confidence in the viability of the system. At the TRIPS Council meeting in October 2009, the United States (represented by Tanuje Garde, Director for Intellectual Property Rights and Innovation, Office of the US Trade Representative) did not join with consensus and refused the request by the African Group, the LDC Group, Brazil, Ecuador, India, Pakistan and other developing countries, to hold a review of the Paragraph 6 system. To the best of your blogger’s knowledge, the US did not specifically say why the Obama Administration opposed a review. The recent IP-Watch piece (11 February 2010) noted that the “United States argued that the limited use of the system indicated countries with no domestic manufacturing capacity were getting access to medicines via aid”. It would appear that the signal USTR conveyed at the TRIPS Council last year was that WTO members’ concerns regarding the Paragraph 6 system were unfounded as PEPFAR and other aid initiatives would save the day.
At today’s informal consultations, Room E was filled to capacity demonstrating the importance countries accorded to the challenges of implementation of Paragraph 6. These informal consultations dwelt upon ascertaining why the Paragraph 6 system has only been used once. Switzerland noted that the Paragraph 6 was not designed to be a panacea to cure all ills ailing public health. Canada decried NGO reports of the Canadian experience in using the system as long and onerous; the Canadian delegate produced a chronological account meant to disabuse Members of the notion that Canada’s experience was difficult.
India requested the WTO secretariat to organize a workshop to examine the implementation of the Paragraph 6 decision open to Members and civil society organizations. This was seconded by Nigeria (representing the African Group) and supported by China Brazil and Venezuela. The United States (represented by Acting Head of Mission to the WTO, David Shark) objected to the inclusion of NGOs at this workshop.
A formal meeting of the TRIPS Council (2 March to 3 March, 2010) looms ahead; it is expected that the Chair of the TRIPS Council will produce a report of today’s informal consultation to the March meeting. Although today’s informal was originally intended as a one-off, sources close to the negotiations indicate that the large turnout today provides room for more open-ended, informal consultations to examine the implementation of the Paragraph 6 system. One wonders if these consultations, in concert with the TRIPS Council workshop, could precipitate a fundamental re-examination of trade rules that affect access to medicines.