WORLD TRADE
ORGANIZATIONIP/C/W/401
28 May 2003
(03-2876)
Council for Trade-Related Aspects
of Intellectual Property RightsOriginal:  English
PARAGRAPH 6 OF THE DOHA DECLARATION ON THE
TRIPS AGREEMENT AND PUBLIC HEALTH
Communication from the African, Caribbean and Pacific
Group of States (ACP)
The following letter, dated 23 May 2003 and addressed to the Chairman of the Council, has
been received from the Deputy Prime Minister of Vanuatu writing in his capacity as the President inOffice of the African, Caribbean and Pacific Group of  States (ACP) Council of Ministers, with a
request that it be circulated to Members.
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WTO NEGOTIATIONS ON TRIPS AND PUBLIC HEALTH
I write this letter in my capacity as the President in office of the African, Caribbean and
Pacific Group of States (ACP) Council of Ministers to  express on behalf of the ACP its grave concern
at the impasse reached in the World Trade Organization (WTO) negotiations on the implementation
of paragraph 6 of the Declaration on TRIPS and Public Health agreed at the Fourth WTO Ministerial
Conference at Doha in November 2001.
The Declaration as a whole was an important step forward in the global campaign for
affordable medicines.  It was expected to give developing countries greater confidence to use the
public health safeguards in the TRIPS Agreement in order to improve their access to affordable
medicines.  This in turn could help bring about real benefits in the health of the majority of the poor
people in developing countries, most of which are ACP States.
The Declaration also gives the least-developed countries more time before they are required
to implement pharmaceutical patenting, thereby signalling that Ministers acknowledged a
fundamental imbalance within the TRIPS Agreement.  By setting a deadline of December 2002, they
committed themselves to finding an expeditious solution.  This raised the hopes and expectations of
the world's poor, in that the implementation of th e TRIPS Agreement would not adversely affect the
supply of affordable medicines that are so vital to deal with the many diseases that continue to afflict
them.
However, the developments in the WTO in dealing with this question are disheartening.
While the ACP commends the efforts of Ambassador Pérez Motta, the immediate past Chairman of
the Council for TRIPS, for working relentlessly to come up with a consensual text submitted on
16 December 2002 containing key elements which would constitute the legal means to enable aIP/C/W/401
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decision by the WTO General Council to fulfil the Doha mandate as stated in paragraph 6, the Group
is disappointed by the failure of the full membership of the WTO to agree to his text.
The ACP believes that Ambassador Pérez Motta's draft included all the key elements such as
scope and coverage of diseases and products;  eligible importing countries;  assessment ofmanufacturing capacity;  eligible supplying Members;  safeguards against diversion;  issues of
notification and transparency;  legal mechanism of amendment or waiver needed to implement a
system adopted pursuant to paragraph 6 of Doha;  meaning of domestic market in Article 31(f) of
TRIPS;  and how to address transfer of technology/capacity-building (including that stipulated in
Article 66.2 of TRIPS), and a monitoring modality by the TRIPS Council.
The ACP recalls that although all other WTO Members were willing to accept the
16 December 2002 draft on TRIPS as a compromise text, the United States, at midnight on
20 December 2002 was not able to join the emerging consensus.  This effectively meant that the set
deadline of December 2002 could not be met.  The ACP interprets the US action and position as an
attempt to effectively redefine and limit the scope of public health problems reflected in the Doha
Declaration.  The ACP had valued the Doha Declaration as a significant achievement, and wouldtherefore not accept any attempts to roll-back the commitments made in the interest of public health
by all the Ministers at Doha.
The ACP has however noted the assurance made by the United States of its willingness "to
work with other WTO Members to try to find a solution within WTO", as expressed in a lettercirculated in January 2003.  The Group further notes the US offer to initiate a "unilateral moratorium"
on the TRIPS and Public Health issues, including the undertaking not to seek to enforce Article 31(f)
of the TRIPS Agreement through the WTO dispute settlement procedure against a WTO Member
under certain conditions.
The Group has also noted that in an attempt to reach a solution, the European Union (EU) had
suggested in a letter, dated 7 January 2003 and circulated to WTO Trade Ministers, that Members
wishing to import medicines to meet any public health concern not explicitly covered in an initial list
of diseases be encouraged to seek WHO advice.  This suggestion was made on the grounds that, with
its public expertise, involving the WHO, which is  renowned for its public health competence, would
provide a mechanism to ensure the Doha Declaration can be applied in good faith.
While welcoming the EU efforts to break the deadlock in negotiations, the ACP could not
endorse the EU proposal.  The ACP position then was and still is that any text that restricts the
agreement to a set list of diseases, even involving the WHO in assessing public health concerns,
would constitute an unacceptable attempt to restrict ACP's use of compulsory licensing.  The scope of
diseases was already extensively discussed in Doha, and the consensus text included in the DohaDeclaration rejected any limitations.
The ACP further rejected the attempts to confine the application of the agreement to national
emergencies and other circumstances of extreme urgency, one of the suggestions made as a way out
of the impasse.  Limiting the agreement to national emergencies and other circumstances of extremeurgency would also be deviating from the content and understanding of the Doha Declaration.
In view of the above and with the outbreak of  new diseases such as SARS, the ACP believes
that a solution needs to be found now as a matter of urgency.  Such a solution should be
straightforward and easy to implement and should not be made so cumbersome as to be effectivelyunworkable.
With regard to other aspects of the Declarat ion, most governments of the ACP States need
assistance and support in integrating the TRIPS public interest safeguards into their legislation.  Least-IP/C/W/401
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developed countries need to be provided with advice on how to take advantage of the extended
deadlines for pharmaceutical patenting, since many have already implemented, or are in the process of
implementing, TRIPS-compliant rules.  In so doing, some of the LDCs have failed, due to lack of
capacity, to take advantage of the extended transiti on period agreed at Doha.  To this end, the ACP
calls upon organizations such as the World Intellectual Property Organization (WIPO) and WorldHealth Organization (WHO) as well as the WTO to ensure that all the aspects of the Doha Declaration
are fully integrated within their technical assistance programmes.
The ACP further calls on the pharmaceutical companies to ensure that their patent policies,
practices and lobbying activities are compatible with the Doha Declaration.
The ACP urges developed country Members of the WTO to adapt their intellectual property
enforcement policies according to the Doha Decl aration.  This means respecting the rights of
governments to use the TRIPS public health safeguards.
In conclusion, the ACP requests that the issue of TRIPS and Public Health be addressed
satisfactorily before the Fifth WTO Ministerial Conference to be held in Cancún and that all WTOstakeholders be mobilized to ensure urgent and adequate resolution of the issue.  I am, therefore, by a
copy of this letter requesting the Director-General of the WTO to circulate this letter to all WTO
Member States.
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