Doha public health declaration may help South

by Chakravarthi Raghavan


DOHA: The Doha Declaration on the TRIPS Agreement and Public Health could (and it is no more than “could”) enable developing countries to take measures to protect public health and “promote” (not ensure) access to medicines for all.

As a ‘political declaration’, in effect a WTO political statement asking Member governments to go ahead and exercise their rights, perhaps it has some value or gives some encouragement. After all, according to James Love of the Consumer Project on Technology, the US government in October alone issued some 130 compulsory licences, but no African country has issued one.

To the extent they have not done so for fear of arm-twisting by the major governments or by the pharmaceutical corporations, does this change anything? This remains to be tested.

And for those Members that have insufficient or no domestic production capacity or infrastructure to use a compulsory licence but have to get the product from elsewhere, the issue is left open by the declaration in the sense that the WTO’s TRIPS Council is instructed by the ministers to find an “expeditious solution” to the problem (paragraph 6).

Can India use this instrument in respect of new drugs for which it is not yet due to give product patents but has to give exclusive marketing rights? Does this clear the way for either Brazil or India? It is not clear at all, excepting that they could claim the moral high ground in doing so.

While the declaration probably constitutes an advance on the current situation, and though a number of  developing countries spearheading this drive, like the Africans, India and Brazil, acclaimed it as a “victory”, in fact much is going to depend on how they actually invoke it, and how and whether any future disputes will arise and be dealt with by the dispute settlement system of the WTO, which is guided and orchestrated by the secretariat.

The declaration (in paragraph 4) has ministers agree that the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) “does not and should not” prevent Members from taking measures to protect public health. Statement of fact? Interpretation or a Doha wish?

The next sentence in the paragraph then says: “.... we affirm that the (TRIPS) 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.”

While an earlier Indian press release viewed the declaration as a major victory and breakthrough, later Indian Commerce Minister Murasoli Maran told a meeting of the Ministerial’s Committee of the Whole that “can and should” should be replaced by “shall”, citing the Ten Commandments of the Bible (“Thou shalt not ...”).

The declaration also sets out in paragraph 5 some of the existing flexibilities provided by the TRIPS Agreement, but in fact none of these is value-added. For example, irrespective of the declaration, the WTO’s dispute settlement panels have to apply customary rules of interpretation of public international law, including reading the provisions of the TRIPS Agreement in the light of its object and purpose, in particular its objectives and principles.

The problem has been that in interpreting agreements, the WTO panels and Appellate Body have been citing other parts of an agreement or other agreements that seem to restrict or weigh against the developing world. If a dispute arises now, when the civil society protests centred on major killer diseases like AIDS have mobilized public opinion, panels may bow down to Doha. In a few years’ time, however, the issue may be forgotten, and the part of the declaration (paragraph 3) about intellectual property protection being important for the development of new medicines could then be cited (though the next sentence in the paragraph talks of the concerns about the effect of intellectual property protection on prices).

Thus, at best the declaration enables governments to act by taking the moral high ground and daring the pharmaceutical corporations and their backers. (SUNS5009)