Haiti submitted the Request for an Extension of the Transitional Period Under Article 66.1 of the TRIPS Agreement on behalf the WTO LDC Group in November of last year. According to news(1) reports(2), several Developed Countries are pressuring the TRIPS Council to deny or limit Haiti’s request. TRIPS-structured talks between LDCs and Developed Countries have put on the table a limited extension of 5 to 7.5 years and a “no rollback” provision that would prevent LDCs from removing TRIPS compliant provisions from their laws.
Ugandan organizations* are working to build pressure in the opposite direction. The organizations have submitted a letter to the WTO Council Chair in support of Haiti’s request. They have petitioned the East African Legislative Assembly to apply pressure in support of the request. They have also written to several developed country-Ambassadors to Uganda, outlining the consequences for Uganda of not receiving an extension or introducing the suggested no-rollback provision. A media campaign is underway to inform people of the LDCs’ concerns. Organization representatives quoted in The Observer stressed the importance of ensuring Ugandans’ access to HIV medications and the country’s need to develop a competitive technological base, sentiments that echo Haiti’s concerns.
Article 66.1 of TRIPS states:
In view of the special needs and requirements of least-developed country Members, their economic, financial and administrative constraints, and their need for flexibility to create a viable technological base, such Members shall not be required to apply the provisions of this Agreement, other than Articles 3, 4 and 5, for a period of 10 years from the date of application as defined under paragraph 1 of Article 65. The Council for TRIPS shall, upon duly motivated request by a least-developed country Member, accord extensions of this period. (emphasis added.)
The TRIPS agreement was signed in 1994. Everyone was granted an initial grace period of one year and LDCs were granted an additional 10 years. The LDC exemptions were set to expire at the end of 2005. Zambia made a request in 2005 for an extension as outlined in Article 66.1 on behalf of the LDC members. The TRIPS Council granted that extension, moving the compliance deadline to 1 July 2013.
Haiti’s request differs substantially from Zambia’s request in that it asks for LDCs to be exempt from full compliance as long as they remain LDCs. While the TRIPS provision mentions “10 years,” for the original exemption time period, it mentions nothing about time limits for extensions. In this respect, Haiti’s request is within the bounds of the agreement. However, Afro Leo wonders if it’s a good idea.
Least Developed Countries are designated by the United Nations, unlike Developing Countries which can designate themselves into that category. 33 of the 48 Least Developed Countries** are in Africa. (See UN Factsheet.) There is no set number of countries that must be LDCs, for example, LDCs are not the bottom 5% of countries. Rather, LDC status is determined by 3 factors: per capita income, human assets and economic vulnerability. Since the LDC status was introduced, three countries have improved enough to graduate off the list. Two of these, Botswana and Cape Verde, are African. This shows that a change in status is possible. (Full LDC Report.)
Would an indefinite exemption for most TRIPS provisions provide reverse incentives to remain on the LDC list? Once a country graduates from LDC status, it can still designate itself a Developing Country for WTO purposes. TRIPS does provide extended deadlines for Developing Country compliance, but these deadlines have all passed by now. The only remaining benefit to being a Developing Country under TRIPS is the technical cooperation from developed countries granted under Article 67. Therefore, in order to not be in immediate violation of TRIPS, current LDC members need to be in full compliance with TRIPS before graduating from LDC status.
While purposeful holding back on development could be a risk of granting the indefinite extension, this Little Leo thinks it too risky to LDCs for any country to purposely pursue. (But she has been told she gives too much benefit of the doubt in general.) More likely is that a permanent extension would allow LDCs to focus on elements of development in the orders that best suit their individual country circumstances. As LDCs focus on development and continue to engage in the international discussions on IP, they will begin implementing laws and regulations that comply with TRIPS provisions. Not all at once, but piecemeal. This Little Leo predicts there will also be some tradeoffs where certain implementations are required by the international community in exchange for progression in the areas of Traditional Knowledge, Expressions of Folklore and Genetic Resources, areas being championed by Devolving Countries.
Afro-Leo is interested to hear others’ thoughts on the extension request.
Hat tip to Primah Kwagala of CEHURD for links to several articles on this topic.
* Ugandan organizations involved in the appeals:
1. The Center for Health, Human Rights and Development (CEHURD)
2. The Aids Support Organisation (TASO)
3. Uganda Network on Law, Ethics and HIV/AIDS (UGANET)
4. Coalition for Health Promotion and Social Development (HEPS -Uganda)
5. The HIV/AIDS Alliance
6. Health GAP
7. The National Community of Women Living with AIDS (NACWOLA)
8. The Mariam Foundation
9. Health Advocates Network(HAN)
10. Community Health and Information Network (CHAIN)
11. Office of the High Commissioner for Human Rights –Uganda Country Office (OHCHR)
12. SALT –Uganda
13. Uganda Youth Against AIDS foundation (UYAF)
14. The Action Group for Health, Human Rights and HIV/AIDS (AGHA)
15. Southern and Eastern African Trade Information & Negotiations Institute Uganda** LDCs: Afghanistan, Angola, Bangladesh, Benin, Bhutan, Burkina Faso, Burundi, Cambodia, Central African Republic, Chad, Comoros, Democratic Republic of the Congo, Djibouti, Equatorial Guinea, Eritrea, Ethiopia, Gambia, Guinea, Guinea-Bissau, Haiti, Kiribati, Lao People’s Democratic Republic, Lesotho, Liberia, Madagascar, Malawi, Mali, Mauritania, Mozambique, Myanmar, Nepal, Niger, Rwanda, Samoa, Sao Tome and Principe, Senegal, Sierra Leone, Solomon Islands, Somalia, Sudan, Timor-Leste, Togo, Tuvalu, Uganda, United Republic of Tanzania, Vanuatu, Yemen and Zambia.
