[Ip-health] IDN: TRIPS HANG OVER LDC LIKE A SWORD OF DAMOCLES
ssangeeta at myjaring.net
Mon May 27 16:27:09 PDT 2013
TRIPS HANG OVER LDC LIKE A SWORD OF DAMOCLES
By Jaya Ramachandran | IDN-InDepth NewsAnalysis
BERLIN (IDN) - A modern-day Damocles' sword is hanging over 49 of the
world's poorest and most vulnerable courtiers spanning across
Asia-Pacific, Sub-Saharan Africa and the Caribbean. Unless the U.S. and
the 27-nation European Union change their minds, the least developed
countries (LDCs) will be forced to abide by the Trade-related Aspects of
Intellectual Property Rights (TRIPS) much to their detriment.
With this in view, LDC Watch non-governmental organisation have urged the
EU Trade Policy Committee "to fully support approval of Haiti¹s request"
on behalf of the LDCs to the TRIPS Council of the World Trade
Organisation (WTO) seeking an unconditional deferment of the
implementation of TRIPS obligations until the countries of the group
graduate from the LDC status. The existing transition period ends on 1
July 1, 2013.
In a letter to the Committee, LDC Watch international coordinator Arjun
Karki points out that WTO TRIPS Agreement allows LDCs a renewable
transition period in recognition of the special needs and requirements of
LDCs and the need to create a sound and viable technological base and to
overcome economic and financial constraints. And legally Article 66.1 of
the WTO-TRIPS Agreement mandates all WTO members to approve the LDC
request, once it has been submitted.
"The TRIPS Agreement, like all WTO agreements, is built on a foundation of
'special and differential treatment' for developing countries and,
especially, for LDCs, in recognition of their vulnerability and
constraints," says Karki, adding: At the conclusion of the Uruguay Round,
in a Decision on Measures in favour of LDCs, WTO members agreed that the
WTO rules ³should be applied in a flexible and supportive manner for the
"It is apparent that the WTO legally obliges the TRIPS Council to grant
the extension as requested by the LDCs or at the very least to formulate
an extension on terms that are favorable and supportive of the needs of
LDCs," argues Karki.
The LDC request has received massive support from all segments of society.
At the March 5-6 TRIPS Council meeting in Geneva, developing countries
strongly supported the request. Many civil society groups (representing
millions), industry, academics, UN agencies have also firmly supported the
approval of an unconditional extension of the transition period for as
long as a country remains a LDC.
Despite the overwhelming support received, EU representatives in Geneva
continue to be opposed to the extension request submitted by the LDC
Group. Instead, the EU jointly with the U.S. are offering LDCs a poor and
impractical deal of an incredibly short extension (for example, five
years) that is subject to restrictive conditions. Particularly
problematic, says Karki, is the ³no-roll-back² clause that would force
LDCs to maintain current levels of IPRs (intellectual property rights)
protections, even if such protection is adverse to their circumstances and
The LDC Watch pleads for an unconditional extension of the LDC¹s
transition period until they cease to be LDCs for the following reasons:
- LDCs are the poorest, most vulnerable and marginalized segment of the
international community. The challenges, (some of which have been
highlighted above) facing LDCs are colossal and formidable. They lack the
capacities that are prerequisite to benefit from TRIPS standards of IPRs
The requested transition period will enable LDCs to develop their IPR
systems gradually in line with their economic and technological
development and to address challenges such as bridging the knowledge and
technology gap by facilitating access to affordable educational materials
and technology. Further LDCs will be able to invest their scarce resources
towards pressing development needs rather than on implementing
TRIPS-compliant IPR systems, which are not only costly but may adversely
- LDCs are very much in need of quality, low-cost medical products and
technologies in LDCs. However it is also well-known that such access may
be affected by TRIPS rules, as such rules drive up their prices. The
proposed LDC request is critical to facilitate access to affordable
medical technologies required in LDCs.
- The time-frame proposed by LDCs i.e. that the transition period should
apply until a country graduates from the LDC status is reasonable and
practical since developing a viable technological base and overcoming
constraints such as highlighted above takes decades. A shorter extension
(e.g. 5 years or 10 years) is simply inadequate for LDCs.
- The condition of ³no-roll-back clause² being imposed on LDCs is aimed at
narrowing LDC¹s policy space by cementing colonial era IPR rules and
ill-advised IPR reforms. It directly conflicts the intent and spirit of
Article 66.1 that LDCs should have maximum flexibility and policy space
including the option of undoing existing IPR protections should such
protection be adverse to its needs. Accordingly the ³no-roll-back²
condition is illegitimate under the TRIPS Agreement as it alters the
nature of rights that LDCs are entitled to under the TRIPS Agreement
during the transition period.
- Pursuant to Article 66.1 of the TRIPS Agreement, there is a legal
obligation on all Members of the WTO to accord LDC members the requested
extension, once a duly motivated request is submitted to the TRIPS Council
by the LDCs.
This point of view is also backed by the Brussels-based Eurostep, a
network of autonomous European non-governmental development organisations
working towards peace, justice and equality in a world free of poverty.
Its director Simon Stocker said: "I fully support the position being taken
by LDC Watch, and would urge EU member states to accede to the LDC's
position. Not to do so will only hurt the EU and further tarnish its image
around the world."
Eurostep advocates changes in Europe's policies and practice based on the
perspectives drawn from direct experiences of an active involvement of its
members and their partners in development in over 100 countries across the
world. LDC Watch is an important partner of Eurostep.
In fact the LDC Watch and the Our World Is Not For Sale (OWINFS) have
charged the developed nations and incumbent chair of the TRIPS Council of
³unjust and unethical treatment². The large number of supporters of LDC
demand have not been invited to participate in the ongoing consultations,²
says a statement issued by the LDC Watch and the OWINFS. ³Instead, the
consultations have been limited to the LDC Group and developed countries
like the US, the European Union, Japan, New Zealand, Canada, Australia,
Switzerland, in particular, including the Council Chair.
³Alfredo Suescum, who is the current chair of the Council on TRIPS of the
World Trade Organization (WTO), is, therefore, depriving LDCs of their
allies, while attempting to overwhelm the negotiating capacity of the
poorest members of the WTO by placing them in an unfair position where
they have to face the united might of the developed countries.²
Adverse impact on EAC
According to Uganda's daily, the New Vision, The United States, European
Union, and Australia are aggressively trying to pressure LDCs to keep in
place the ³no roll-back² provision that prevents LDCs from changing their
existing laws, even if they were adopted from the colonial era or new laws
that have proven bad for development.
The precarious events have put four of the five East African Community
(EAC) partner states Uganda, Tanzania, Burundi and Rwanda classified
as Least Developed Countries at a high risk of having access to medicine,
food, and seeds, writes Patrick Jaramogi.
Under the TRIPS Agreement, the four EAC states apart from Kenya that is
under the developing countries category are not obliged to implement the
TRIPS agreement until July 2013 and until 2016 for the IPRs relating to
The agreement gives them rights to seek further extension of these
transitions deadlines, restrict IPR protection and under certain
circumstances issue licenses for import or production of an IPR protected
commodity without authority from the Intellectual Property Rights Holder.
Civil society organisations (CSOs) contend that for these reasons,
technologically advanced countries such as the U.S., EU, and others
consider TRIPS agreement too weak to serve their interests,² Primah
Kwagala and Intellectual Property Lawyer with Center for Health Human
Rights and Development (CEHURD) told the New Vision.
A country is classified as a LDC on the basis of three criteria low
income, human assets weakness, economic vulnerability applied by the
Committee for Development Policy (CDP), a subsidiary body of the UN
Economic and Social Council (ECOSOC).
This Committee also recommends graduation of a country from its LDC
status. In any case, generally on most aspects the conditions prevailing
in LDCs are terribly poor.
For example, more than half of the population lives on less than $1.25
(PPP) per day; adult literacy rate in LDCs is on average at 60.7%, with
gross enrolment in tertiary education at about 6.6% while primary school
dropout rate at 40.9 % of the population; only 1.7 per 100 people have
personal computers, while about 5 out of 100 have access to the worldwide
network; more than half of the LDC population do not have access to
electricity, water or sanitation facilities.
The productive capacities in LDCs are also extremely limited and they tend
to be at the bottom of all innovation/technology indices. [IDN-InDepthNews
May 25, 2013]
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