[Ip-health] IP-Watch: Brazilian Legend Celso Amorim Recounts Negotiation For TRIPS Flexibilities

Thiru Balasubramaniam thiru at keionline.org
Fri Mar 17 04:15:08 PDT 2017


https://www.ip-watch.org/2017/03/16/brazilian-legend-celso-amorim-recounts-negotiation-trips-flexibilities/

Brazilian Legend Celso Amorim Recounts Negotiation For TRIPS Flexibilities

16/03/2017 BY WILLIAM NEW, INTELLECTUAL PROPERTY WATCH


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Minister Celso Amorim of Brazil has had a significant impact on the state
of global negotiations in his professional lifetime, including on global
intellectual property rights.

As his new book, Acting Globally: Memoirs of Brazil’s Assertive Foreign
Policy, sets out, in the first decade of the 2000s Brazil played an
assertive role in foreign policy in areas such as the Iran nuclear issue,
relations in the Middle East, and the Doha Round of multilateral trade
negotiations at the World Trade Organization.

Amorim (see bio here) was at the centre of that, and reaching back to the
early 1990s, took the lead role in negotiating the 1994 WTO Agreement on
Trade-Related Aspects of Intellectual Property Rights (TRIPS).

Celso Amorim at WTO

In an interview this month with Intellectual Property Watch conducted in
the atrium of the WTO after he spoke at a South Centre side event (IPW,
WTO/TRIPS, 7 March 2017), Amorim briefly retold the story of the TRIPS
agreement negotiations that resulted in flexibilities for developing
countries. He also negotiated the landmark 2001 Doha Declaration on TRIPS
and Public Health, which reinforced those flexibilities.

The TRIPS negotiations were mostly completed in 1991, he said, and “the
whole [time], we were negotiating under pressure, under duress.” Brazil and
many other developing countries spent all of the time under threats like
suspension of financing at the International Monetary Fund.

The original Punta del Este Declaration launching the Uruguay Round in 1986
focused the negotiations on intellectual property rights only on
counterfeit products, he noted. This was under the General Agreement on
Trade and Tariffs (GATT), before the creation of the WTO.

“What people had in mind, at least we thought, … that it was trade in
counterfeited goods. So we thought that would be it,” he said. “Well then
of course it evolved.” The developed countries led by the United States and
others “were able to bring in all of the question of patents and
intellectual property which normally would be the remit of the World
Intellectual Property Organization through the GATT at the time.”

In addition, he said developed countries ensured “that there could be
cross-retaliation so that a violation in intellectual property would enable
a country to retaliate in goods, steel or orange juice or whatever, like if
the Motion Picture Association, for instance, didn’t like something we did
on film, or any pharmaceutical company.”

When they came out of the TRIPS negotiations, developing countries thought
it didn’t look good for them as developed countries seem to have gotten
their way. “All the things that they wanted they were able to put,” he said.

Silver Lining

But he saw a silver lining in some areas of the agreement, he said,
thinking then, “There are some ambiguities here and there.” For instance,
he said, “you were not able to say compulsory licence is not permitted. It
was not legal to say that.”

They left it in a way that could be interpreted that there should be no
preventing it, including a general article on non-discrimination. “We were
not able to say compulsory licence is permitted, but [they were] not able
to say CL is prohibited,” Amorim said. “I said to my colleague, ‘Don’t be
so pessimistic. After all, these ambiguities we can someday use in our
favour.’ But I did not have much expectation.”

Then something happened beyond negotiators’ control: “During the 90s,
public opinion changed because of HIV/AIDS and because of the public
opinion of the United States,” he said.

So when the US pursued a WTO legal dispute against Brazil, “against the
provisions of our law on compulsory licensing,” he said, “a great deal of
the US public opinion was with us because of people affected by HIV. In the
United States, the rates were going down but still there was solidarity in
that respect.”

At that time, he was now Brazil’s ambassador to the WTO (having been the
trade minister who signed the Uruguay Round earlier).

And Brazil also made a “small manoeuvre which helped,” he said. “We looked
for provisions in the United States patent law that had discriminatory
aspects, especially in relation to grants to universities and things like
that, because they say the product has to be patented in the United States,
it has to be produced in the United States. So we said, ‘Okay you asked for
consultation on that, we will ask for consultation on that as well.’”

“Well, I don’t know what was the thing that weighed more, but they gave
up,” said Amorim. “They gave up and the only thing we agreed was not even
negotiations, we agreed to have conversations. These things are very
subtle.”

Then, as the WTO moved into the Doha Round of negotiations, the issue
became big again, and many developing countries were worried, he said.

“To make a long story short, I saw that there was a big danger that instead
– because the Europeans said, ‘Let us spell out the regulations how this
will be applied. And then I thought, no, that will be against us,” as the
regulation will be for subtract from the flexibilities. Developing
countries sought to make them clear, so it did not happen.

TRIPS ‘Does Not and Should Not Prevent’

The result was Paragraph 4 of the Doha Declaration on TRIPS and Public
Health. It states:

4. We agree that the TRIPS Agreement does not and should not prevent
members from taking measures to protect public health. Accordingly, while
reiterating our commitment to the TRIPS Agreement, we affirm 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.

In this connection, we reaffirm the right of WTO members to use, to the
full, the provisions in the TRIPS Agreement, which provide flexibility for
this purpose.

There were two formulations for this before it was finalised. The
developing countries text said ‘nothing agreed prevents’ [“Nothing in the
TRIPS agreement shall prevent members from taking measures to protect
public health”], and the developed countries said ‘everything in the TRIPS
agreement allows’, he said, the latter potentially a way to disallow
exceptions.

One of the reasons for the failure of the 1999 WTO ministerial in Seattle,
in addition to the US labour movement and disagreement on agriculture,
Amorim said, was that the negotiating text was all in brackets – “hundreds,
maybe thousands of brackets.”

“I remember when we left the last meeting here [at the WTO before heading
to Seattle], I said, well the motto of the WTO has always been, ‘nothing is
agreed until everything is agreed’, but in this case, it is ‘nothing is
agreed, full stop’,” he said.

So WTO General Council Chair Stuart Harbison (Hong Kong) had the idea to
have a clean text with no brackets, and asked negotiators, including
Amorim, for their opinion in what he called “confessions”.

At that time, Brazil had a “very important policy” to combat HIV/AIDS with
the use of generic drugs, Amorim said, adding, “I’m not speaking of
something abstract. Our health minister was a very strong minister.”

So when Harbison called, Amorim told him, “it’s fine that you have a clean
text” if it has the developing country formulation. “If you have the one by
the developed countries, forget it,” he said. “And I’ll tell you something,
don’t try to arbitrate, because if you try to arbitrate at that point it
would be negative for us.”

That’s because “in Geneva, everything’s obscure, nobody sees the pressures,
so it’s good to have that ‘shock’ in the public, in Doha [at the next
ministerial to be held in late 2001]. “So I said, if you can’t accept ours,
don’t put theirs and don’t arbitrate, put the two. And if you go to the
history, it was the only paragraph that went with two formulations to Doha.
It doesn’t mean the others didn’t change, but it was the only paragraph
that went with two formulations. That was really because of Brazil.”

That was the first battle, he said, ensuring their formulation made it to
Doha. The second battle? “To ensure that our formulation would be the basis
for the negotiation.”

In the second battle, he said he doesn’t know exactly how it happened, but
it was agreed in the end that their formulation would be the basis of the
negotiations. He listed possible influences: a revolt, the perception that
it was necessary to solve this problem before moving into the bigger
questions of the round as if it was a “gateway” for other things, the
attacks in the US on September 11 giving the Bush administration an
imperative to have an agreement in Doha. Many developing countries came
with Brazil, such as many African countries, and India,

Of course, he said, the text did not stay as their proposal, instead ending
up stating, ‘the agreement will not prevent,’ [“We agree that the TRIPS
agreement does not and should not prevent members from….”] “in a less
aggressive way.”

The negotiation continued, and the groups were getting smaller, with the
smaller group chaired by the former Mexican trade minister and later
foreign minister. There were three ministers from Brazil in Geneva and
Amorim was ambassador and had focused on that subject so he was in the
negotiation.

“So we went to the room, and I had a very serious and honest negotiator on
the other side, an American called Alan Larson. He was a lawyer from the
State Department, which was a piece of luck,” he recounted. “Instead of
having someone the USTR [the Office of the US Trade Representative], there
was this lawyer.”

The chair said at some point that he wanted only the US and Brazil in the
room.

Celso Amorim on familiar ground in the WTO atrium

The European Union wasn’t happy to be left out. And Amorim said no, he
wanted to have an African negotiator with him. Then the African who was
there, who was from Cameroon, said no, ‘if Brazil is there we feel
represented’, said Amorim, adding, “That was one of the best moments I had.”

So the two negotiated and came to an agreement, which was submitted to the
small group and approved.

But when it came to the bigger group, a country from Brazil’s group tried
to reopen the agreement, and he said he could not accept that, “an
agreement is an agreement,” so it didn’t change.

“That was very useful, I didn’t do that with any purpose, that was honestly
a negotiation,” he said. Later on, the laboratories went after Larson,
because they were not happy with the agreement, “and he said – I know this
– the Brazilians were honest, were correct, with me, I have to be correct
with them, and he didn’t change,” Amorim said.

Still later, there were pressures on Brazil’s foreign minister, so he even
had to call the health minister.

The final part of the story is told in a book by Paul Blustein, entitled,
“Misadventures of the Most Favored Nations,” he noted.

The text of paragraph 4 was negotiated word by word, he said, adding,
“That’s why you find a difference between ‘can’ and ‘should’.” This means
it is possible and it is desirable, he said. Yet some things may desirable
and not possible and some things may be possible and not desirable. So he
had to put the two of them in the text.

This word combination appears twice, in the positive and in the negative,
as it also says cannot and should not in the same sentence.

Brazil has only issued a compulsory licence once, he said, for a drug it
imported from India. “But the fact that we have this allowed us to
negotiate with the laboratories from a better position,” he said.

That is why he emphasises preserving the TRIPS flexibilities. “Ambiguities
became flexibilities because they were sanctified, so to say, as
flexibilities,” he said. “This is the essential thing that has to be
preserved, and this is something that has to be respected.”

Bringing the conversation to the present, that’s why he has said that in
the UN High-Level Panel report, Article 2.6.1 is the most important
paragraph, “because it requests countries at the highest level to commit
themselves to respect the TRIPS flexibilities.”

The TRIPS agreement was to a large extent a victory for the developed
countries and a victory for the multinational companies. But with the
changing political situation, social culture, we were able to extract the
Doha Declaration. – Celso Amorim

“The TRIPS agreement was to a large extent a victory for the developed
countries and a victory for the multinational companies, because they
thought they got a lot of things that were not there, of course,
intellectual property in the WTO not WIPO, they got cross-retaliation,
which in the end worked against them – with Brazil cotton and Ecuadoran
bananas,” he said. “But with the changing political situation, social
culture, we were able to extract the Doha Declaration. I didn’t know that I
would ever be able to have something like the Doha Declaration.”

“I was more dejected when I left [the TRIPS negotiation],” said Amorim. The
political climate in 1991 was “totally neo-liberalism, Washington Consensus
and so on, and all these ambiguities would work against us.”

But when the problem of HIV/AIDS appeared, Seattle failed, and sadly, 9/11
made it “absolutely imperative” to launch a new round, not to bring trade
into collapse, it changed the climate.

Doha Declaration Everywhere

“I said well, maybe we were able to preserve some ambiguities,” he said
once more. “But in the end, it was really the Doha Declaration that made
the difference. You see it mentioned everywhere. You see it mentioned in
the UN Human Rights Council, the World Health Organization, in the SDG [UN
2030 Sustainable Development Goal] number 3, etcetera, respecting the
flexibilities established by the Doha Declaration on TRIPS and Health.”

What was distinctive about the Doha Declaration was that “the things that
might have been seen as ambiguous – I don’t say that they were – they were
clarified in a way that was compatible with our interests,” he said. That’s
why so many bilateral and regional agreements since then have been
TRIPS-plus, he said.

As to whether TRIPS ended up hurting developing countries as much as they
feared, he said: “It would have, except for the Doha Declaration. It still
is a difficulty, but it is a smaller difficulty than it would be if not for
the Doha Declaration. Mind you, the developed countries gained a lot, on
patents, everything other than health that’s in there, patents for other
things.”

Asked about the argument that TRIPS is out-of-date and needs updating
through bilaterals, he said: “I have heard that story before. I have great
respect for President Obama, he did great things, but when it comes to
trade, he lost an occasion because when he came to this impasse in 2008 [at
WTO], we were very near. Bush didn’t do it, the Indians were difficult and
so on, but Obama didn’t want to go forward. I even tried to flag with
[then-USTR] Ron Kirk, I don’t know if he even understood me.”

And as to what is going to happen now, he said, “I’m scared. Anyone will be
right once or twice a day. With the TPP [the Trans-Pacific Partnership
which President Trump pulled out of], I think it was a question of whether
it was good for the United States. I heard people from the left wing in the
United States, like Stiglitz, were against TPP, I would agree.”

He added a remark that some political journalists “make a conceptual
error,” confusing TPP with multilateralism, or confusing NATO with
multilateralism. “These are organisations of regional interests, good or
bad, but these are not multilateralism involving the whole world,” the
negotiator said. “The WTO is multilateral. The UN is multilateral.”

And on where he thinks the world will be in 5 years, he said, “I’d like to
know where we’re going to be in six months. If Washington resorts to
unilateral sanctions, what can I say, I don’t know, it will depend on the
[position] of each country.”

“This is not the same world as the 1980s or the 1970s, when the Uruguay
Round was launched,” Amorim concluded. “This is the time of the BRICS
[Brazil, Russia, India, China, South Africa], where exists China, so we’ll
be working for the fragmentation of the world, and not necessarily in the
US’s favour. People will have to think.”



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