are the Needs for
Technical Assistance from
an Asian Developing Country's
by Dr. Pornchai Danvivathana**
This paper is aimed at presenting views on technical assistance required by developing country Members for "implementing commitments, developing trade policy capacity for participation and negotiation, and support for national policy objectives for beneficial integration into the trading system and the global economy."1 Inparticular, it aims to discuss technical assistance for implementation of the Doha Declaration on the TRIPS Agreement2 and Public Health, adopted on November 14, 2001.3 since it lays down Minister's decision that Members' right to protect public health may not be derogated as far as the TRIPS Agreement is concerned.4 It further recognizes that Members with limited capacities in the pharmaceutical sector could, by and large, have problems with compulsory licensing, thereby instructs the Council for TRIPS to come up with an "expeditious solution to this problem" by 2002.5
This paper discusses the political and legal basis of the Declaration in Part II and illustrates elements contained in the same Declaration in Part III. The paper identifies in Part IV the needs of developing countries, while emphasis is made on Asian countries. Concluding remarks are offered in Part V.
II. Political and Legal
Basis of the Declaration
A declaration is mostly considered as a reflection of a political will of States, or WTO Members in this context, having no legal binding force.6 Some say that the Declaration under discussion is no exception.7 However, one could argue that the Declaration, as a decision of WTO Members under Article IX of the Marrakech Agreement Establishing the World Trade Organization of 1994, would be regarded as an agreement within the context of the 1969 Vienna Convention on the Law of Treaties and has its validity of interpretative authority of the TRIPS Agreement as recognized in Article IX, paragraph 2, of the Marrakech Agreement.8 After adoption, the Declaration launching the new round of trade negotiations until January 1, 2005.9 To simplify, the Declaration on the TRIPS Agreement and Public Health is an instrument, having its political dimension and definitely possesing a certain degree of legal-binding effect, which commits Members to some extent even though the language in the Declaration per se is equivocal and could provoke a long debate. Probably, it is the best Members could have achieved when they met at Doha, but more importanty it is better than none. This is not urprising why a separate declara-tion on this issue was agreed so as to highlight the concern about public health. If one recalls a tug-of-war within the context of multilateral negotiation during the Uruguay Round, for instance, the developing countries preferred discussions on related issues leaving intellectual property issues to be dealth with at other fora, e.g. the World Intellectual Property Organization (WIPO), while the developed countries had focused on intellectual property protection with a view to earning trading advan- tage.10 Fortunately, both sides ended up their negotiations by reaching a compro-mise on which the TRIPS Agreement was built up.11
It should be noted that paragraph 6 of the Doha Ministerial Declaration shed light on the quinterssential component forming part of the same Declaration that human, animal or plant life or health or the environment shall be protected in conformity with the provisions of the WTO Agreement.12 With that in mind, the Council for TRIPS has included the issue of "the TRIPS Agreement and public health" on its agenda for discussions.13
Now that the tone is set and time is ticking, more has to be done in terms of structuring future work until the end of 2002 since the developing country Members shall have in Place patent protection for pharmaceutical products after the expiration of the transitional arrangements,14 which is January 1. 2005 while least-developing country Members are entitled to delay such protection until January 1, 2016.15 This period in the so-called "mailbox" provision of the TRIPS Agreement allows developing and least-developing country Members to produce cheap medicines under patent elsewhere, which will not be characterized as inconsistent with the TRIPS Agreement until such grace periods lapse.16 In other words, peoples in developing and least-developed country Members, as the case may be, may not be able to afford patented medicines, most of which are sold at high prices, after the transitional arrangements come to and end. It is observed that medicines available at low prices in developing countries, as well as those manufactured for export, will decrease.17 Meanwhile, this poses problems to some developing countries to earmark adjustment costs or they run the risks of losing the entire pharmaceutical industry where medicines under patent may not be protectable under the domestic law of a developing country.18
This gives rise to the need of developing country Members for intensified technical assistance and capacity building, including research and development.
III. Elements Contained
in the Declaration
No matter whether the Declaration itself has its legal binding force, it has given mandate to the Council for TRIPS to "find an expeditious solution to this problem and report the General Council before the end of 2002".19 It purports that Members may no longer turn their backs against public health.
In essence, people usually refer to paragraph 4 of the Declaration where the Minister agree that "the TRIPS Agreement does not and should not prevent Members from taking measures to protect public health".20 The issue before us is whether the language as such is clear enough. Or, it goes without saying that the TRIPS Agreement, like any other agreement within or outside the WTO framework, has no object and purpose in any sense to prevent any country, be it Member or non- Member of the agreement in question, from "taking measures to protect public health". However, the second sentence, which reads that "the Agreement can and should be interpreted and implemented in a manner supportive of WTO Members' right to protect public health and in particular, to promote access to medicines for all", was written in a better construction since it leaves room to maneuver even though the language is still vague and is subject to interpretation. Sub-paragraph 2 of paragraph 4 of the Declaration seems to provide flexibility for Members to interpret the TRIPS Agreement, but it would be unmeaningful unless read in combination with paragraph 5 of the Declaration.
It should be noted that paragraph 17 of the Doha Ministerial Declaration refers to promotion of access to existing medicines only, and that due regard to new medicines is limited to research and development. To put it in another way, paragraph 17 as it stands has not contributed to the better understanding of or the interpretation on the Decclaration.
Let us examine paragraph 5 as mentioned above. Paragraph 5(a) refers to the customary of interpretation, where the TRIPS Agreement is no exception, that it shall be interpreted as specified in its object and purpose. It cannot but understand that the language is a restatement of Article 31 of the Vienna Convention on the Law of Treaties, 1969. Paragraph 5(b) makes it clear that compulsory licensing is a widely recognized measure for this purpose as many developing country Members, including non-governmental organizations (NGOs), have voiced their concern about the protection of public health and access to medicine for all, This concept is consistent with the provisions of Article 8, 30 and 31 of the TRIPS Agreement. However, it is a pity that paragraph 5(e) attempts to interpret the provision of Article 31(b) in a rather limited way by means of giving examples, despite the reaffirmation of Members'right to apply such provision subject to their determination. Paragraph 5(d) contains the language which is no more than an elaboration of the provision of Article 6 of the TRIPS Agreement and can implicity be found in legal materials/articles.
To facilitate and assist Members to contemplate on intellectual property rights and public, health,, the United Nations Conference on Trade and Development (UNCTAD) has suggested that Articles 8, 27, 30, 31 and 39 be amended and the exception of public interest be modified to provide clarifications within the context of the Declaration.21
This paper views that the Doha Ministerial Declaration and the Declaration on TRIPS Agreement and Public Health are a starting point for Members to work on.The most important point is what would be the final conclusion by the end of 2002. To that end, developing country and least-developed country Members need to have profound knowledge in the origins of intellectual property rights and their parameters. Such Members are also in need of special and differential (S & D) treatment, whereas the TRIPS Agreement has provided only grace periods of implementation and a clause on technical cooperation,22 without a word on the transfer of technology.
IV Needs for Technical Assistance
Even though paragraph 6 of the Declaration reconizes that some WTO Members may have limited capacities in the pharmaceutical sector, or none at all, the Declaration does not go any further. In fact, technical cooperation and capacity building are touched upon in paragraph 16, 21, 24, 26, 27, 33, 38-40, 42 and 43 of the Doha Ministerial Declaration. To supplement and complement the Doha Ministerial Declaration, the WTO Secretariat has made available WTO document No. WT/COMTD/W/95/Rev.3 containing "Coordinated WTO Secretariat Annual Technical Assistance Plan 2002". It was reported that efforts have been made to finance technical assis-tance and capacity building, mandated by the Doha Ministerial Declaration, in that the WTO Pledging Conference for the Doha Development Agenda Global Trust Fund (DDAGTF) was held on March 11, 2002 in Geneva. Statistics shows that technical assistance has been increased since 1990 and provided to different regions by means, e.g., seminars, training courses, workshops and conferences.23 More remains to be done in the short and long terms as developing countries find it difficult to understand the standards set in the TRIPS Agreement and also to meet the implementation costs they have to bear.24
It is unfortunate that technical assistance and capacity building thus far undertaken have aimed to provide basic backgound and knowledge in intellectual property rights conferred to the right holders and obligations of Members under the Agreement. At this point in time when we all have approaching the new round of trade negotiations, emphasis should be given to ways and means to improve Members' caliber to negotiater in a constructive way, and the capability to determine what modalities are most suitable to address issues on the agenda.
In this context, Thailand, as a developing country in Southeast Asia, is enthusiastic to exchange views and experiences with other developing countries regarding the issue of public health. A forum for discussions, like a WTO Retreat on the TRIPS Agreement and Public Health, should be encouraged on an inter- or intra-regional basis. It could adopt the form of an ASEAN25 Retreat where ASEAN Members meet as often as required to discuss and exchange views on issues put forward before- them and reach agreement on the basis of consensus. For a WTO Retreat, there might not be any agreement reached, but it would certainly provide developing country Members with an opportunity to have better understanding of prolems, issues and concerns raised by other Members and, above all, engage in active participation at the WTO. Representatives or officials who arre Geneva-based for trade negotiations should be the first target group for gathering purposes, followed by those coming from capital. High-ranking officials and legislators should be provided with chances to reinforce their capacity as appropriate since they play an important role in terms of policy advice and enforcement.
As a matter of fact, Asian,countries
have different levels of development, variegated cultures, and legal systems
some or many of which arre mixed with religions, for example, in Thailand where
family and inheritance laws of Islam shall
be exclusively applied in the four provinces in the South. They should be able to make proposals on, or even dictate, the modalities they prefer and the details of technical assistance which are supposed to meet their requirements as mush as possible. Technical assistance as such could be provided on a regional or, if possible, sub-regional basis, given the different characteristics of regions.
Another point, inadvertently overlooked from time to time, is the fact that officials with different background and involved with the TRIPS Agreement and public health. It happened, more often than not, that lawyers who have to interpret the TRIPS Agreement have divergent views from technicval people, including physiscians, pharmacists and scientists, responsible for its implementation and enforcement, since they had been trained in different fields of stuay. Their views could be easily reconciled if they attend mufti-disciplinary courses so that they have sufficient background to comprehend the entire TRIPS Agreement.
As recipients of technical
assistance where its main objective is to help developing country Members to
stand on their own feet in the future, they should be able to carry out their
own technical assistance on an ever-lasting basis. To materialize, it is advisable
to seek assurance that technical assistance and capacity building will be made
available continuously and progressively on a periodic basis. Reliable sources
and competent international organizations, for example, UNCTAD, the Food and
Agriculture Organization (F.A.O.), the World Health Organzation (WHO), should
be approached in a wider context so that different muti-displinary perpectives
would be given and experiences could be shared in the meantime. In the long
run, courses focusing on training the trainers should be put in place to provide
V. Concluding Remarks
Insofar as public health
is concerned, developing countries need more than technical assistance, and
capacity building since they have limited human and financial resources, and
are not equipped with high technology. They also need technology transfer to
be able to produce at least generic medicine on their own fror sale to their
people at low prices since medicine is one of the necessivies of humankind.
other than food, accommodation, and clothing. Developing countries capacity
to produce medicines at prices affordable by their people should be projected
as a long-term achievement. Until then the situation will be alleviates.
In a short or immediate run, remedies should be made available somehow. For example, accord should and could be reached between the governments of the developing countries which are in need of such medicines and the right-holders of the medicines under patent in that a certain amount of such medicines could be manufactured at low costs and sold at minimal prices under the terms and conditions acceptable to all. Perhaps, this can be made possible by granting privileges to pharmacceutical manufacturers holding patent in exchange for the right to production and distribution of medicines at affordable prices to the public. The bottom line of this approach is to offer a win-win situation to all while ensuring access to medicines for all and consonant with the TRIPS Agreement.
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* Presented at a Conference on "Implementation of the Doha Declaration on the TRIPS Agreement and Public Health -- Technical Assistance -- How to Get It Right", held on March 28, 2002, at the Centre International de Conference de Geneva (CICG), organized by Medicins sans Frontieres (MSF), Consumer Project on Technology (CPT), Oxfam and Health Action International (HAI).
** MInister Counsellor, Permanent Mission of Thailand to the WTO: J.S.D. (New York University), M.A. (International Relations and Diplomacy), LL.M. (N.Y.U.), Barrister - at - Law, LL.B. (2nd Class Hons.); Former Associate Judge of the Central Intellectual Property and International Trade Court, Thailand.
1 "Technical Cooperation for Capacity Building, Growth and Integration. The New WTO Strategy", Note by the WTO Secretariat, 2002, p.1
2 TRIPS Agreement stands for the Agreement on Trade - Related Aspects of Intellectual Property Rights.
3 WTO Doc. No. WT/MIN(01)/DEC/2, dated November 20, 2001 (hereinafter referred to as "the Declaration".
4 Paragraph 4 of the Declaration.
6 of the Declaration.
6 Jan Klabbers, "The Concept of Treaty in International Law" (The Hague : HIuwer Law International, Kluwer La 1996) : 6, 61
7 "Public Health - Putting Doha Success to Test", South Bulletin, No.30, February 28, 2002, A South Centre Publication, Geneva, p.9 N.B. This article contains extracts from Professor Fredrick M. Abbott's study, titled "WTO TRIPS Agreement and its Implementations for Access to Medicines in Developing Countries", prepared for the British Commission on Intellectual Propety Rights.
9 See paragraph 45 of the Doha Ministerial Declaration, WTO document No. WT/MIN(01)DEC/1
10 John Croome, "Reshaping the World Trading System. A History of the Uruguay Round" (The Hague: Kluwer Law International, 1999) : 109 - 110.
11 Christopher Arup, "The New World Trade Organization Agreements" (Cambridge: Cambridge Uni-versity Press, 2000) : 180 - 181
12 This term covers the Marrakesh Agreement and other agreement and associated legal instruments referred to in Article 1 of the Marrakesh Agreement.
13 JOB(02)n, dated February 13, 2002 (Tasks for the Regular Meeings of the Council for TRIPS under the Doha Declarations. Informal Note by the Chair)
14 Article 65 of the TRIPS Agreement.
7 of the declaration.
16 Carlors A. Primo Braga and Carsten Fink, "Trade-related Intellectual Property Rights: From Marrakesh to Seattle" in Klaus Minter Deutsch and Bernhard Speyer, edited "The World Trade Organization Millennium Round. Free Trade in the Twenty-first Century" (London : Routledge, 2001) : 183; "Public Health - Putting Doha Success to Test", in note 7 supra, p.10.
17 "Public Health - Putting Doha Success to Test", in note 7 supra, p.11.
18 Michael J. Trebilcock and Robert Howse, "The Regulation of International Trade" (London : Routledge,1999) :328.
19 Paragraph 6 of the Declaration.
20 The first sentence paragraph 4 of the Declaration.
21 "Background Paper : the TRIPs Agreement and the Built-in Agenda", LJNCTAD, Trade Negotiations and Commercial Diplomacy Branch (www.unctad.org/commdip), p.4
22 Christopher Arup, in note 7 supra, p.202.
23 "Technical Cooperation for Capacity Building, Growth and Integration", in note I supra, p.10.
24 Bernard M. Hockman and Michel M. Kostecki, "The Political Economy of the World Trading System.The WTO and Beyond" (New York : Oxford University Press, 2001) : 292-294.
is the Association of Southeast Asian Nations established by the Bangkok Declaration