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

H.E. Ambassador Xolelwa Mlumbi-Peter
Chad on behalf of LDC Group
7 ANNUAL REVIEW OF THE SPECIAL COMPULSORY LICENSING SYSTEM (PARAGRAPH 7 OF THE ANNEX TO THE AMENDED TRIPS AGREEMENT AND PARAGRAPH 8 OF THE DECISION ON THE IMPLEMENTATION OF PARAGRAPH 6 OF THE DOHA DECLARATION ON THE TRIPS AGREEMENT AND PUBLIC HEALTH)

213.   Chad is speaking on behalf of the LDC Group, which thanks you for your report. We also thank the Secretariat for the update just provided to us. 214.   As you recalled, it is true that the TRIPS Agreement and public health is a highly important matter for LDCs. 215.   The entry into force of the amended TRIPS Agreement in January 2017 was a historic development, building integrally into the Agreement, as you reminded us, a valuable public health safeguard for the benefit of developing countries and particularly LDCs, which are extremely fragile and vulnerable. 216.   The amendment provides for medicines to be produced under a special compulsory licence, for export to countries particularly reliant on overseas suppliers to meet the needs of their patients. As you know very well, the health needs in our countries, and especially in the least developed country Members, are extraordinarily high. 217.   It is therefore easy to see why this amendment is important as we face this global health crisis caused by COVID-19. 218.   The LDC Group understands the important role that the TRIPS Agreement and public health play in relation to COVID-19. Indeed, we believe that the provisions of this amendment are highly relevant to the current global health crisis. The pandemic is an accelerator rather than a complication arising from the situation. 219.   For this reason, the LDC Group is of the view that this issue is particularly important given the current pandemic. Focusing on access to medical supplies and saving human lives is therefore our overarching concern. We are currently facing difficulties due to the restrictions on travel, market access and the movement of goods. We are struggling to access the tools necessary for tackling the pandemic, such as, inter alia, medicines, masks and ventilators. 220.   This amendment, in our view, is highly valuable and useful in light of the current situation. By way of conclusion, you reminded us that 33 Members, including LDC Members, are yet to accept this amendment. The LDC Group has therefore begun awareness-raising and mobilization activities to ensure that the Members of our Group accept the amendment by the deadline. We believe that these Members will do so and that it is simply a procedural matter. It is hoped that, by the deadline, this amendment will be validated and accepted by those Members of the LDC Group that have not yet done so. 221.   Once again, this amendment is highly useful and important for the LDC Group so that we are able to easily access medicines and pharmaceutical products. In light of this, it is clear that the matter is relevant to the pandemic.

30. The Chair recalled that, in the past, the review had been conducted pursuant to Paragraph 6 System of the 2003 Decision on the Implementation of Paragraph 6 of the Doha Declaration on the TRIPS Agreement and Public Health. Since the entry into force of the Protocol Amending the TRIPS Agreement on 23 January 2017, the review also responded to the requirements that had now been incorporated into the amended TRIPS Agreement.
31. Paragraph 7 of the Annex to the amended TRIPS Agreement and paragraph 8 of the 2003 Waiver Decision required the Council to review the functioning of the System annually, with a view to ensuring its effective operation. They also required the Council to report annually on the System's operation to the General Council. In the case of the Waiver Decision, this review was also deemed to fulfil the requirements of Article IX:4 of the WTO Agreement.
32. During the Chair's consultations in September concerning Members' preferences for approaching the annual review, a number of Members had suggested that the discussion focus on concrete problems with the application of the System, rather than an abstract consideration of issues. Some had referred to procedural complexities of the System that needed to be discussed so that the System could ensure access to medicines as intended. Others had cautioned that this agenda item should not be "another COVID-19 item". One concrete proposal that had gathered broad support was the suggestion that the Secretariat give a presentation on how to use the Special Compulsory Licensing System (as opposed to how to accept the Amendment), so as to refresh delegations' memory and provide background to the discussion.
33. The Chair suggested that she would proceed by first informing Members about the status of acceptances of the Protocol Amending the TRIPS Agreement, and then give the floor to the Secretariat to provide a presentation on how to use the Special Compulsory Licensing System to remind everyone about the detail. The floor would then be open to delegations for an exchange of views about the functioning of the System, and finally, the Council would consider its Report to the General Council.
34. The Chair updated Members on the status of acceptances of the TRIPS Protocol. The current period for accepting it ran until 31 December 2021. The amended TRIPS Agreement was thus binding for 131 WTO Members. In other words, 33 Members were yet to accept the Protocol Amending the TRIPS Agreement. She encouraged those Members to complete their domestic procedures as soon as possible.
35. When the TRIPS Amendment had entered into force in January 2017, Members had noted that it would be useful to consider how to make this new procurement tool work effectively in practice. The Chair therefore encouraged Members to engage in a constructive discussion which could also build on earlier reviews. As previous Chairs and she herself had indicated on past occasions, Members might find two documents particularly helpful to facilitate their considerations. The first document was the Council's Annual Review of 2016 (circulated in document IP/C/76); and the second document was the Secretariat's 2016 Report on Technical Cooperation Activities (circulated in document IP/C/W/618). Annex II of that report summarized key issues that delegations might wish to consider to support the practical use of the System.
36. The representatives of the WTO Secretariat, Chad (on behalf of the LDC Group), Ukraine, South Africa, India, China, Tanzania (on behalf of the African Group), Japan, Australia, the United States of America, Canada, Chile, Switzerland and the European Union took the floor.
37. The Council took note of the statements made.
38. The Chair turned to the Council's report to the General Council. A draft report had been prepared by the Secretariat (circulated in document JOB/IP/38). It was modelled on previous years' reports and contained factual information on the implementation and use of the System. Under the section on the Amendment to the TRIPS Agreement, it also included a list of Members who were yet to accept the Protocol Amending the TRIPS Agreement. As with past reports, an extract from the Council's minutes on this agenda item would be attached to the report in Annex 1 and Appendix 1.
39. The Council agreed to adopt the draft report and to attach the record of the discussion to it.
IP/C/M/96, IP/C/M/96/Add.1