(2002; 56 pages) [French] [Spanish]
The Doha Declaration addresses real and urgent problems faced by many developing countries in the area of public health. It is not intended to amend the TRIPS Agreement in any substantial manner. Rather, it aims to clarify the relationship between the TRIPS Agreement and Public Health policies of Member countries, and confirm the rights that Members have retained under the Agreement, particularly by defining the flexibility allowed in certain key areas.
The Declaration addresses most of the concerns of developing countries on the issue of public health. The ambiguous wording used in some paragraphs - particularly in paragraph 4 - was the obvious price paid to build a consensus for the adoption of the Declaration. Despite such wording, the Declaration makes it clear that a conflict may exist between TRIPS standards and public health, and has reaffirmed the right of Members, particularly developing countries, to take measures necessary to protect public health. The Declaration has set the ground for a differentiation of intellectual property policies when necessary to protect health.
Though an important political document, the Doha Declaration also has legal effects, equivalent to those of an authoritative interpretation under WTO rules.
As the mandate given in paragraphs 6 and 7 illustrates, the Doha Declaration represents, rather than the end of a process, the initial step for rethinking the TRIPS Agreement in light of the public interest.
Paragraph 6 aims at addressing a problem created by the extension of patent protection for pharmaceutical products to all WTO Members, irrespective of their level of development and of their pharmaceutical manufacturing capacity. While many different legal approaches may be developed, an effective solution must create the right economic conditions for countries with no or insufficient manufacturing capacity to obtain pharmaceutical products at low cost. Likewise, the TRIPS Agreement will continue to create tensions in the public health area, if the case of countries where no patent protection exists is not also a part of viable legal and economic solution.
All WTO Members should, in due time, take the steps, as necessary, to implement the Doha Declaration. Amendments to national laws should be introduced in order to facilitate exports of needed pharmaceuticals under paragraph 6 of the Declaration. Developing countries should be encouraged (and the relevant technical assistance provided) to review their legislation in order to ensure that the flexibilities, as clarified in the Declaration, as well as other flexibilities allowed by the TRIPS Agreement, are incorporated in national laws and effectively used to address public health concerns.
The situation of LDCs received special attention at the Doha Conference, but the paragraph 7 action item did not represent any significant improvement for the great majority of them. Hence, the problems faced by LDCs to gain access to needed pharmaceuticals are likely to require further consideration by the WTO Members, in order to accomplish the objectives sought by the Doha Declaration.