Minutes - TRIPS Council - View details of the intervention/statement

Ambassador Mothusi Palai (Botswana)
Uganda on behalf of Least-developed countries
147. I make this statement on behalf of the LDC Group. It is no secret that LDCs have limited capacity to manufacture medicines. Access to affordable medicines by our people continues to remain a prominent public health concern relating to TB; HIV/AIDS and malaria. It is a matter of life and death. We have a recent eye-opener in this regard – the Ebola outbreak has given us a clear message on our capacity constraints and immense limitations. You will recall that Paragraph 6 of the Doha Declaration on the TRIPS Agreement and Public Health clearly recognized the gravity of the problem and instructed the Council to find an expeditious solution. 148. Accordingly; Members adopted a decision in this regard (WT/L/540 and Corr. 1 of September 2003) to facilitate the legal coverage of importing medicines. However; this decision was marred by so many unnecessary burdensome conditions. Getting recourse through this decision was time-consuming. This is disconcerting in view of the life and death situation of our patients. Despite the multiple difficulties and without manufacturing capacity; only one of our members has invoked the provisions under this instrument. Failing to respond appropriately and quickly is thus a collective shame for all of us. As such we join our voice to those who have called for the review of this decision with a view to simplifying the instrument to address our concerns. Further; the adoption of the General Council Decision WT/L/641 in 2005 in order to respond to difficulties experienced by countries with no or insufficient manufacturing capacity was an important milestone. 149. However; we are concerned that the process of accepting the TRIPS amendment seems to be taking longer than it took to negotiate and arrive at a decision in 2005. Surely; if all are concerned about easing the difficulties faced by millions of people across the globe; with these global public health concerns the question is where is that true commitment to the cause of those who are suffering? Consultations have been held to get a sense of where the difficulties lie; for completing the formality of depositing an instrument of ratification. Seminars have been held; and continue to be held on this topic; yet progress is taking place at a snail's speed. 150. We cannot afford to wait any longer before the amendments are affected. All of us have a collective responsibility to ensure that the TRIPS Agreement works for those faced with a public health concern; just as much as private rightholders are enjoying the benefits of protection offered under this Agreement. We therefore call upon Members who are yet to deposit their Instrument of Acceptance to do so.
The Council took note of statements made and agreed on the draft cover note to the report. It also agreed that the record of the discussion be attached to it.
6.1. The Chairman recalled that the standard format for the review had been that, after an introduction and update on recent developments by the Chairman, the floor was opened to delegates for comments. In 2010 and 2011, the Council had held more structured debates. They had been conducted on the basis of a list of topics for the discussion that had been agreed in advance of the reviews. In light of the feedback previous Chairmen had received in their consultations prior to the subsequent reviews, the 2012 and 2013 reviews had again followed the standard format.

6.2. At his informal consultations in June 2014, he had encouraged delegations to consider how the Council should conduct the present review. In light of the feedback received, the Chairman suggested that the standard format be followed this year. The records of earlier reviews, including the exchange of questions and responses, continued to provide a unique and valuable resource for understanding this important measure and might inform Members' discussions at this review. If Members felt that any questions regarding the Paragraph 6 System itself or possible alternatives to it had not been adequately addressed at past reviews, they should feel free to revert to any such questions.

6.3. As regards the purpose of the review, he recalled that paragraph 8 of the waiver Decision provided that the Council for TRIPS shall review annually the functioning of the system set out in the Decision with a view to ensuring its effective operation and shall annually report on its operation to the General Council. Furthermore, the paragraph provided that this review shall be deemed to fulfil the review requirements of Article IX:4 of the WTO Agreement.

6.4. The Secretariat had prepared a draft cover note for the Council's report modelled on previous years' reports (circulated as JOB/IP/11). He suggested that the Council take up the preparation of its report to the General Council after it had exhausted its discussion. Paragraph 8 of the cover note contained a list of Members that had notified their acceptance of the Protocol. The following Members had deposited their instruments of acceptance since the Council's last meeting in June: Botswana on 18 June and Uruguay on 31 July.

6.5. He recalled that the Protocol had originally been open for acceptance by Members until 1 December 2007. Upon proposals by the TRIPS Council, the General Council had four times extended this period for further two-year periods. At present, the period extended until 31 December 2015. 53 instruments of acceptance, including from the European Union, had been deposited with the WTO Director-General. In order for the TRIPS amendment to enter into force, acceptance by two thirds of the membership was, however, required. He therefore strongly encouraged Members who had not yet completed their domestic procedures to do so as soon as possible.

6.6. He said that, regarding how accepting the Protocol related to the implementation of the Paragraph 6 System in a Member's domestic legal framework, these were two entirely separate acts; the Protocol could therefore be accepted independently from adopting domestic implementing legislation. By accepting the Protocol, a Member expressed its consent that other WTO Members were entitled to use the additional flexibility that the System provided. Should a WTO Member wish to take advantage itself of these additional flexibilities, it might need to domestically implement appropriate legislative measures. But since these two processes were entirely separate, a Member might choose to deposit an instrument of acceptance of the Protocol without the need to wait for any domestic implementation. Many instruments of acceptance that the WTO had received had been deposited before the Member in question had adopted any domestic implementing legislation.

6.7. The representatives of Chile; Uganda on behalf of the LDC Group; India; Brazil; Cuba; China; Chinese Taipei; the United States; Australia; Canada; Japan; the European Union; Switzerland; Egypt and the Secretariats of WTO; WIPO and WHO took the floor.

6.8. Referring to the draft cover note for the Council's report to the General Council (circulated as JOB/IP/11), the Chairman said that it contained factual information on the implementation and use of the system established under the Decision, as well as on the status of acceptances of the Protocol Amending the TRIPS Agreement. In accordance with the way that the Council had prepared its reports in the previous years, the part of the minutes of the meeting that would reflect the discussions held under this agenda item might be attached to the cover note.

6.9. The Council took note of statements made and agreed on the draft cover note to the report. It also agreed that the record of the discussion be attached to it.

IP/C/M/77, IP/C/M/77/Add.1