Doha Declaration on TRIPS and Public Health: Paragraph 4
4. We agree that the TRIPS Agreement does not and should not prevent members from taking measures to protect public health. Accordingly, while reiterating our commitment to the TRIPS Agreement, we affirm that the 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.
In this connection, we reaffirm the right of WTO members to use, to the full, the provisions in the TRIPS Agreement, which provide flexibility for this purpose.
Paragraph 4 of the Doha Declaration was one of the most controversial provisions of the document and the subject of intense negotiations during the preparations for and at the Ministerial Conference in Doha. Developing countries’ negotiating target was, as mentioned above, to obtain recognition that nothing in the TRIPS Agreement shall be interpreted as preventing Members from adopting measures necessary to protect public health.
Developing countries were essentially seeking a declaration recognizing their right to implement certain pro-competitive measures, notably compulsory licences and parallel imports, as needed to enhance access to health care. They were frustrated by the opposition and pressure exerted on some countries by the pharmaceutical industry and governments28. Moreover, some felt that the final proviso in Article 8.1 establishing that any measures adopted, inter alia, to protect public health should be consistent with the provisions of the TRIPS Agreement,29 provided less protection for public health than under the corresponding exceptions of Article XX (b) of GATT30 and the Sanitary and Phytosanitary Measures and Technical Barriers to Trade agreements.
28 See, e.g., Drahos, 2002.
29 TRIPS Article 8.1: “Members may, in formulating or amending their laws and regulations, adopt measures necessary to protect public health and nutrition, and to promote the public interest in sectors of vital importance to their socio-economic and technological development, provided that such measures are consistent with the provisions of this Agreement.”
30 GATT Article XX: “Subject to the requirement that such measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail, or a disguised restriction on international trade, nothing in this Agreement shall be construed to prevent the adoption or enforcement by any contracting party of measures:
(b)necessary to protect human, animal or plant life or health;”
Developed countries did not view the TRIPS Agreement as representing a barrier to the achievement of public health objectives, and they were not prepared to undermine any of the obligations under the Agreement31. According to the EU, “the TRIPS Agreement cannot be held responsible for the health crisis in developing countries, while it must not stand in the way for action to combat the crisis”. The EU was, consequently, “ready to contribute constructively to any debate concerning the interpretation of its provisions”32
31 See. e.g., the statement by the US delegation at the special session of the Council for TRIPS of 21 June 2001, IP/C/M/31.
The text, drafted by the chair of the WTO General Council, which provided the basis for the negotiations in Doha, offered two options for paragraph 4: