The Doha Declaration on the TRIPS Agreement and Public Health, adopted by the WTO Ministerial Conference in November 2001, which affirms that the TRIPS Agreement should be interpreted and implemented so as to protect public health and promote access to medicines for all, marked a watershed in international trade demonstrating that a rules-based trading system should be compatible with public health interests. The Declaration enshrines the principle WHO has publicly advocated and advanced over the last four years, namely the reaffirmation of the right of WTO Members to make full use of the safeguard provisions of the TRIPS Agreement to protect public health and enhance access to medicines.
Article 31 (f) of the TRIPS Agreement stipulates that a compulsory licence must be issued predominantly for the supply of the domestic market of the Member granting the licence. Consequently, many countries without a significant pharmaceutical sector have not been able to take advantage of the compulsory licensing provisions of TRIPS. Although Members may issue compulsory licences for importation, they are restricted to importing goods from countries where pharmaceuticals are not patented, or where their term of protection has expired. As the sources for generic production of newer life saving drugs will increasingly run out after 2005, resolving this problem is of extreme importance to Members’ efforts to secure access to affordable medicines to address public health needs.
Consequently, Paragraph 6 of the Doha Declaration instructs the Council for TRIPS to find an expeditious solution to the problem faced by countries with insufficient or no adequate pharmaceutical production capacity in making effective use of the compulsory licensing provisions of the TRIPS Agreement. To this end, WHO has publicly stated its commitment (WTO Council for TRIPS, 5-7 March 2002) to support WTO Members and the TRIPS Council in whatever way they wish to find an expeditious solution to this problem.
Shortly after the Doha Ministerial, WHO/EDM commissioned Professor Carlos Correa (University of Buenos Aires) to write a paper examining the public health implications of the Doha Declaration. This paper: (1) provides an overview of the Declaration’s antecedents, (2) offers a general treatment of the Declaration’s provisions, (3) provides guidance to WTO Members in finding an expeditious solution by presenting possible options WTO Members may consider in resolving the problem posed in Paragraph 6 of the Declaration, and (4) discusses related issues not covered in the Declaration.
Professor Correa is the Director of the Masters Programme on Science and Technology Policy and Management at the University of Buenos Aires. He is an internationally recognized professor, lawyer, economist and former Undersecretary of State for Informatics and Development for Argentina. He is currently serving on the UK Commission on Intellectual Property Rights. In 1999 he received an achievement award by The Economist. He was involved in the negotiations on TRIPS during the Uruguay Round and has since focused much of his professional work on examining questions concerning the global intellectual property regime. He has worked extensively on intellectual property issues as a consultant to UNCTAD, UNDP, and WHO.