WORLD TRADE  
ORGANIZATION  IP/C/W/445 
6 April 2005 
 (05-1390) 
Council for Trade-Related Aspects 
of Intellectual Property Rights Original:   English 
 
 
  
THE TRIPS AGREEMENT AND PUBLIC HEALTH 
 
Communication from Rwanda on Behalf of the African Group
 
  
 The following communication, dated 31 March 2005, is being circulated at the request of the 
delegation of Rwanda on behalf of the African Gr oup.  This comprises a statement made by Rwanda 
on behalf of the African Group during the TRIPS C ouncil meeting held on 31 March under the agenda 
item "Decision on the Implementation of Paragra ph 6 of the Doha Declaration on the TRIPS 
Agreement and Public Health".  
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1. The President of the United States, referring to the case of Terri Schiavo who has been in a 
vegetative state for the last 15 years, said that "where there are serious questions and substantial 
doubts, our society, our laws, and our courts should ha ve a presumption in favour of life.  It should be 
our goal as a nation to build a culture of life".  
2. The dedication "to build a culture of life"  should be stronger, more urgent and immediate in 
the TRIPS Council which has been mandated to find a permanent solution on how to ensure a 
sustainable supply of essential generic medicine s to the millions of people dying everyday, 
particularly in Africa for not having access to life- saving affordable medicine because they lack the 
manufacturing capacity.  Unfortunately this dedica tion and determination seems to be lacking. 
3. Four years have passed sin ce Members recognized the problem  faced by WTO Members with 
insufficient or no manufacturing capacity in the pharm aceutical sector, in making use of compulsory 
licensing under the TRIPS Agreement, and the African  Group is disappointed that Members have not 
moved closer to finding a permanent solution to this problem.  
4. The African Group has submitted a proposal on how to incorporate the temporary waiver into 
the TRIPS Agreement.  It has provided a detailed e xplanation about the proposed amendment.  It has 
also explained that certain parts of the 30 A ugust 2003 Decision are redunda nt and should not form 
any part of the permanent solution. 
5. However, it appears that some Members are not  engaging constructively in this discussion. 
For instance, they acknowledge that some parts of  the waiver are redundant but to date no concrete 
proposal has been tabled by any of them. 
6. The African Group would like to refresh the memory of Members of the circumstances 
prevailing prior to and at the time the 30 August 2003 Decision was agreed to.  IP/C/W/445 
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 7. The African Group had proposed many options that allowed countries to export and import 
affordable generic medicines to satisfy the public  health needs of people worldwide.  However we 
faced a lot of pressure from some Members which im posed many conditions that are difficult to meet. 
8. Finally, after months of discussion and debate, an  interim solution in the form of a waiver of 
Article 31(f) and (h) was agreed to by the Member s.  The African Group and many other developing 
and least-developed countries were not entirely happy w ith this solution and this was made very clear 
during the TRIPS Council meetings.  We agreed to this "interim solution" on the understanding 
precisely that it was only an interim solution, wh ile discussions to find a permanent solution would 
continue.  This understanding is re flected in paragraph 11 of the Decision which states:  "The TRIPS 
Council shall initiate by the end of  2003 work on the preparation of such an amendment with a view 
to its adoption within six months, on the understa nding that the amendment will be based, where 
appropriate, on this Decision". 
9. The ordinary meaning of the sentence "the am endment will be based, where appropriate, on 
this Decision" indicates that it was never the in tention of the Members to use the entire August 
Decision as the amendment.  Only the parts of the 30  August 2003 Decision that are appropriate are to 
be used.  
10. With regard to the Chairman's statement, it is  important to understand the circumstances in 
which the statement came into being, so that we can put this statement in its proper context.  The 
reading of the Chairman's statement, when the Decision was adopted, was more of an attempt to 
provide comfort language to assuage the concerns of some pharmaceutical industries that generic 
manufacturers would gain a strong foothold in th e pharmaceutical market.  During the informal 
TRIPS Council meetings, some developing and least-developed countries delegates had expressed 
their reservations over the content of the statement,  a clear indication that this statement was never 
intended to form any part of the permanent solution. 
11. The main reason why those countries with reservations agreed to go along with the 
Chairman's statement was because they felt an urgent  need to make a contribution to the success of 
the Cancún Ministerial Conference.  WTO Members may recall that there was a strong feeling at that 
time that a solution, even if it w as an interim solution, had to be concluded before the Cancún meeting 
so that the meeting could focus on other issues and thus have a better chance of success.  It was felt by all that a Chairman's statement would help facilitate  the quick conclusion to the interim solution.  But 
it was also the understanding that this would only be  for an interim solution, and that a permanent 
solution would require more careful consideration,  taking into account all the aspects, including how 
the mechanism chosen could be operationalized in practice. 
12. The Chairman's statement should thus be seen as a facility that served a particular purpose at 
that time, mainly to meet the deadline of having a temporary settlement before the Cancún meeting.  
However, the circumstances were temporary and no l onger exist.  In line with the context in which the 
Chairman's statement came into being, the 30 A ugust 2003 Decision that was agreed to in document 
IP/C/W/405 did not make any reference to the Chairman 's statement.  It was only later, that a footnote 
referring to the Chairman's statement was added,  without the express consent of the Members.  
Indeed, we are puzzled as to how that footnote came to  be added, and we would like a clarification on 
t h i s .   M o r e o v e r ,  w e  m u s t  p u t  o n  r e c o r d  t h a t  i t  was added without the consent or consensus of the 
Members.  
13. Thus the African Group which makes up a large portion of the WTO's membership cannot 
and will not accept an interpretation of paragrap h 11 that says the August Decision and the 
Chairman's statement in its entiret y should form the amendment.   IP/C/W/445 
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 14. We wish to recall the commitment of Member St ates in the Doha Declaration to interpret and 
implement the TRIPS Agreement "in a manner suppor tive of WTO Members' right to protect public 
health and, in particular, to promote access to me dicines for all".  We are not convinced that the 
30 August 2003 Decision together with the Chairman 's statement as it stands today will fulfil the 
commitment to protect public health and promote ac cess to medicines for all.  Indeed, concerns have 
been raised by policy makers in African countries th at the "interim solution"  as it now stands can pose 
problems and obstacles to the realization of the go al of access to affordable medicines for all. 
15. An African regional workshop on Patents and Ac cess to Medicines organized by the African 
Union Commission and attended by policy makers from the Health Ministries and patent departments 
of 35 African countries discussed the issue and expr essed their concerns on the workability of the 
"interim solution".  It also supported the position of the African Group in the WTO on its position to 
seeking a permanent solution.  A statement adopted  by participants at the workshop states:  
"Participants stressed that the issue of th e effects of patents on access to medicines is 
very crucial for the African region which among all continents in the world is the 
poorest and its people are most affected by  serious diseases, and therefore the need 
for access to affordable effective medicines is a must.  Deaths attributable to 
HIV/AIDS alone in 2004, estimated at 2. 5 million, are equivalent to ten times the 
devastation caused by the Tsunami of December 2004.  It is urgent that all countries act individually and collectively to rem ove all obstacles to securing sustainable 
supplies of essential medicines for the people of the region." 
16. In relation to the 30 August 2003 Decision,  it states that "this Decision imposes several 
conditions on importers an d exporters who wish to make use of the waiver, which may affect the 
ability for the mechanism to meet its goal", whic h is the supply of essential generic medicines to 
countries with insufficient or no manufacturing capacity. 
17. The statement further calls for "a more appropr iate 'permanent solution' that revises TRIPS 
and that removes the Article 31(f) constraint wit hout placing new constraints so that the export and 
import of generic medicines can be smoothly facilita ted".  The representatives at this workshop also 
expressed their support for the position and efforts of the African Group in the WTO. 
18. From the statement, it is evident that the policy makers at the national level consider that the 
interim solution contains shortcomings that may a ffect the operational effectiveness to meet the goal 
of supplying affordable medicines, that an appropr iate permanent solution is urgently required, and 
that they support the proposal submitted  by the African Group for the amendment. 
19. The issue at hand is critical to  the African continent and people worldwide.  We cannot and 
should not delay this matter any longer.  Alth ough an interim mechanism exists, it has its 
shortcomings, which may account for the fact that it h as not been used up to now.  Also, this waiver is 
subject to review and can be terminated at any ti me.  We thus seek a solution that is permanent, 
sustainable, secure and predictable. 
20. The African Group has put forward a proposal based on the appropriate elements of the 
30 August 2003 Decision.  We have already explai ned in detail this proposal.  We now seek the 
understanding and agreement of other Members.  
21. The modality for achieving a permanent solution is expressly spelled out in paragraph 11 of 
the Decision.  Therefore we request all Member s of the WTO to share our interpretation of 
paragraph 11 of the 30 August 2003 Decision, and to engage constructively with the intention of 
resolving expeditiously the Doha Declaration' s paragraph 6 problem, in favour of supplying 
affordable medicines to th ose who are most in need. IP/C/W/445 
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 22. Finally, the Group is of the view that a perman ent solution is within reach if Members can act 
in accordance with the letter and spirit of paragra ph 11.  We therefore hope that the consultations to 
be undertaken by the new Chairman of the TRIPS Council, H.E. Ambassador Choi Hyuck of Korea, 
will finalize on the amendment so that a Decision ca n be adopted at the General Council meeting to 
be held in May 2005. 
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