Bridges Daily Update #4 | Doha Talks Reach Home Stretch
It's TRIPs and Public Health! A revised draft Declaration on TRIPs and Public Health was expected late Monday night. The main hurdle was overcome when delegates agreed on a new paragraph 4, which reflects developing countries' Option 1 in the 27 October draft. The paragraph now reads:
'We agree that the TRIPs Agreement does not and should not prevent Members from taking measures to protect public health. Accordingly, while reiterating our commitment to the TRIPs Agreement, we affirm that the Agreement [can and should] [shall] be interpreted and implemented in a manner supportive of the WTO Members' right to protect public health and, in particular, to ensure access to medicines for all.'
'In this connection, we affirm the right of WTO Members to use, to the full, the provisions in the TRIPs Agreement, which provide flexibility for this purpose.'
Paragraph 5 now groups under one heading former paragraphs 5, 6, 7 and 9, which define the flexibilities in paragraph 4. Importantly, according to paragraph 5(d), Members are free to establish their own IPR exhaustion regimes without challenge, subject to MFN and national treatment obligations. This means that Members may enact IPR legislation that permits them to import medicines from third countries rather than purchasing them directly from the manufacturer or its local licensee. This clause strengthens former paragraph 9, because the words without challenge have been added.
The new paragraph 7, which otherwise resembles former para. 10, adds an important element by affirming at the outset developed country Members' commitment to provide incentives to their own firms 'to promote and encourage technology transfer to least-developed country Members'. Paragraph 7 also prolongs LDCs' exemption from patenting obligations from 2006 to 2016, adding that this extension will be 'without prejudice to the right of least-developed country Members to seek other extensions of the transition periods as provided for in Article 66.1 of the TRIPs Agreement.'
With these amendments - all of which go in the direction of developing countries' earlier proposals - 98 percent of the draft Declaration is agreed. The text was brokered principally by the US and Brazil. Still in question is the degree of obligation in paragraph 4, as reflected by square brackets around the options of [can and should] and [shall]. India, Pakistan and the Philippines are strongly pushing for the latter, which they consider legally stronger. Some developed countries are also uneasy with the wording that countries have the right to 'ensure affordable medicines for all', fearing that wealthy countries - or wealthy patients - may use this provision to force prices down or to increase pressure for the production of generics.
The new draft Declaration on TRIPs and Public Health (12 November) is posted here
N.B. Please note that contrary to our report yesterday, Nigeria, and not Canada, was among the eight countries convened to draft the new TRIPs text.
The Negotiating Process
Responding to complaints from a number of least-developed countries, the Committee of the Whole (CoW) on Monday afternoon appointed a seventh Friend of the Chair, Botswana's Minister of Trade, Industry, Wildlife and Tourism Tebelelo Seretse, to carry out consultations on a range of issues not covered by the six existing groups. This seventh group will deal with issues such as labour standards, TRIPs and biodiversity, and dispute settlement reform.
Based on the Friends of the Chair (FoC) consultations, a new draft Ministerial Declaration was expected to be released to Members on Monday night, or at least well before the opening of the CoW at 9:30 a.m. on Tuesday. At the CoW, delegations would then voice any objections they had, at which point the text would be re-adjusted to take account of the major problem areas, and re-submitted to Members by around midday on Tuesday. Sources say 'horse-trading' between issue areas will start 'whenever Members have reached a clear understanding of where the leeway lies for final 'give and take' in getting a package together'. Canada categorically stated that the Conference would finish by midnight on Tuesday.
While most countries maintain that the consultations process is more open than in Seattle, problems continue to surface on transparency. African diplomats said they have had difficulties in finding out about meetings, and some smaller non-anglophone delegations have complained there is an utter lack of simultaneous interpretation in the FoC consultations that precludes them from participating effectively. In addition, the 11 CEFTA countries of Eastern Europe are voicing concerns that they are being shut out of most informal consultations, particularly on Singapore issues. Their specific requests to be included are often ignored, and by the time they do find out, meetings have often already been concluded. EU Trade Commissioner Pascal Lamy admitted that transparency is a time-consuming exercise, and there is sometimes a trade-off between transparency and efficiency, creating a 'somewhat chaotic' process.
Commissioner Lamy identified the serious outstanding problem-areas as environment, implementation concerns and agriculture. On the latter, he said the EU could provide some flexibility, but not much. Many countries accuse the EU of having a far too ambitious agenda with regard to environment, agriculture, and Singapore issues, particularly investment and competition.
The European Union found itself essentially alone in its opposition to the draft text on agriculture today after key players, including South Korea, Japan and Norway, indicated that they would accept the language in the Harbinson draft. The EU continued to object to language calling for an eventual phaseout of export subsidies, insisting that this provision be weakened if a new round is to occur. While few Members are happy with the Harbinson text, most agree that the compromises contained within it are so delicate that any changes would open the door to irreconcilable disagreements. Consequently, calls for a 'development box' are not likely to produce changes in the text. Sources indicate, however, that concessions to developing countries will be addressed in detail once negotiations begin. Meanwhile, negotiators will attempt to bridge the gap between the EU and the rest of the world. In the words of a representative from Canada, 'we now need to get creative.'
Disagreements persist on how environment should be dealt with in a final Declaration. The EU insists it wants a paragraph committing the WTO to launch negotiations on various environmental issues, including clarification of the WTO-MEA relationship, eco-labelling, and, more contentiously, the precautionary principle. In addition, the EU is trying to shift fisheries subsidies to the environment track. The great majority of other Members, including developing countries, the US and Canada, oppose the European approach to environment.
Developing countries are also forwarding their own environmental agenda. They say they could live with paragraph 44 of the draft Declaration, which outlines the role of the Committees on Trade and Environment and Trade and Development during ongoing WTO talks. Also discussed on Monday - though in the implementation sessions - was Tiret 69 of the implementation text addressing the so-called spaces for development policy, including recovering the possibility of using subsidies for environmental objectives. The other environ-mental topic dear to developing countries, namely ensuring com-patibility in the implementation of TRIPs with the Convention on Biological Diversity, has been bounced to the "other issues" group.
Developing countries fear that negotiations on environment will eliminate any market access gained in agricultural concessions, leaving their net access unchanged.
Facilitator Heraldo Muñoz Valenzuela is reportedly in a difficult situation regarding what text to hand back to the CoW, and said he would submit a text reflecting whatever he has been able to broker when he feels he can't go any further with consultations.
The US said on Monday that it could live with clarification on MEAs so long as this means formalising links between secretariats of MEAs and the WTO, but said it would not consider legal language or issues clarifying legal precedence.
At press time, consultations on rules were nearing conclusion. The most important development in this area was an indication that US resistance to negotiations on anti-dumping was slackening. This is a major shift that could help unlock doors not only in the rules negotiations, but also in other sectors. Such linkages were already evident in consultations between the facilitator on rules, South Africa's Minister Alec Erwin and Minister Pascal Couchepin of Switzerland, the facilitator for implementation issues.
Progress was reportedly also made in the subsidies discussions, although no details were available at press time. Sources close to the negotiations said, however, that some text on fisheries subsidies was likely but did not specify the substance, possibly because the precise content had not been agreed yet. The EU's willingness to consider fisheries issues in the WTO may have acted as a deal-maker.
Sizeable gaps remain in negotiations on Singapore issues. Investment has captured the most attention. Many observers assume that the other issues can be negotiated more easily once investment is resolved. If there is no agreement on investment, some countries have indicated a desire to address the Singapore issues individually.
The European Union encountered significant opposition to proposed language on negotiations on investment and other Singapore issues. Morocco and Pakistan criticised the 'automaticity' of negotiations in the draft Declaration, and India and Malaysia opposed negotiations on investment at all, adding that the EU needs to make credible progress in the implementation discussions before attempting to launch talks on new issues.
ACP countries shifted the focus of debate toward technical assistance, claiming that capacity-building needs to take place before developing countries can negotiate international agreements on investment and competition. Noting that many developing countries lack domestic competition authorities, one ACP representative called international negotiations on these issues 'extremely premature.'
Compromise may not be entirely out of reach: India submitted language on Monday morning calling for a Working Party on Singapore Issues that would report to the Fifth Ministerial Conference, while ten countries, including Pakistan, Chile, Morocco and Korea, indicated that they could accept 'phase-out' language on investment negotiations. Despite major blockages and divisions on the Singapore issues, there seems to be a growing consensus around capacity-building that could lay the groundwork for agreement.
Discussions on implementation pitted the United States and Canada against developing countries over the issue of textiles liberalisation, which remains the focus of discussions in this negotiating group. Pakistan and ACP countries urged developed countries to accelerate the pace of liberalisation commitments undertaken under the Agreement on Textiles and Clothing. Canada declined these requests, citing obligations it made to domestic producers during the Uruguay Round, while the US argued that it would not be able to concede further ground due to its domestic legislative constraints. Both countries claim to have made significant concessions prior to the Ministerial Conference, arguing that the remaining tirets are unacceptable because they contradict prior commitments. Turkey joined the US and Canada in opposing language related to growth-on-growth. According to sources, Pascal Couchepin, chair of the Implementation group, intended to produce revised language by the end of Monday night, though the US and Canada reiterated that they cannot make concessions beyond their Uruguay Round commitments.
Minister Seretse, the new chair of 'other issues', started her consultations on Monday, and was to have new text ready on issues raised by Members outside the six areas for the Monday morning session of the Committee of the Whole. In addition to the issues mentioned in yesterday's BRIDGES, Canada has raised internal transparency for the consideration of ministers. Many delegations also told Minister Seretse that working groups should be established on trade, debt, finance and technology transfer.
As for core labour standards, a disappointed Commissioner Lamy admitted on Monday: 'We're nowhere. We will push it, but for the moment there's nothing more than the Harbinson text on the table.'
Countries Face Off Over Cotonou
Early Tuesday morning, a major spat between the EU/ACP and Latin American countries/Philippines/Thailand threatened to bring the Ministerial Conference to a standstill. The disagreement, which has frustrated a great number of WTO Members, concerns a waiver request brought to Doha by the EU and the ACP for their preferential Cotonou trade arrangement. The difficulty of reaching agreement in the Council for Trade in Goods in Geneva last week effectively pushed the waiver issue onto Doha, though it is technically and formally de-linked from the Ministerial package. Those opposed to the EU/ACP decision say there was no need to bring the waiver request to the negotiations. Some Members speculate that the waiver was brought forward in Doha in return for ACP support for a new round. A CTG is planned for noon on Tuesday to address this issue.