Doha Declaration on TRIPS and Public Health: Sub-paragraph 5 (a)
5. Accordingly and in the light of paragraph 4 above, while maintaining our commitments in the TRIPS Agreement, we recognize that these flexibilities include:
a. In applying the customary rules of interpretation of public international law, each provision of the TRIPS Agreement shall be read in the light of the object and purpose of the Agreement as expressed, in particular, in its objectives and principles.
The objective of developing countries in proposing sub-paragraph 5(a) of the Doha Declaration was to stress the importance of TRIPS Articles 7 and 8 in the interpretation of the Agreement, particularly in the light of Article 31 of the Vienna Convention45. They attained their objective without ignoring, however, that other provisions of the Agreement also contribute to the determination of its object and purpose.
45 It is unclear why this interpretive rule has been considered as one of the “flexibilities” in paragraph 5. In fact, such rule, properly applied, should ensure that due deference to national law is given in appropriate cases; that is, that the flexibility left to Member States is respected by the DSB.
That TRIPS purposes are elaborated in its Articles 7 and 8, but also in other provisions of the Agreement has, in fact, already been recognized in TRIPS/WTO jurisprudence. In the Canada-Patent protection of pharmaceutical products case46, the WTO dispute settlement panel argued, in connection with Article 30 of the TRIPS Agreement, that “the goals and the limitations stated in Articles 7 and 8” as well as those of “other provisions of the TRIPS Agreement which indicate its object and purposes ...must obviously be borne in mind” when examining the conditions set forth by said Article. The panel thus determined that Articles 7 and 8 express the “object and purpose” of the TRIPS Agreement, but that these are not the only provisions establishing the Agreement’s objectives.
46 WT/DS114/R, 17 March 2000 (hereinafter the “EC-Canada case”).
It is also relevant to note that the EC and their Member States emphasized the key role of Articles 7 and 8 in the interpretation of the TRIPS Agreement, in its submission to the Council for TRIPS of 12 June 200147. It stated that
“Although Articles 7 and 8 were not drafted as general exception clauses, they are important for interpreting other provisions of the Agreement, including where measures are taken by Members to meet health objectives”.
47 See IP/C/W/280.
In fact, the Doha Declaration goes beyond merely confirming the relevance of Articles 7 and 8 for the interpretation of the TRIPS Agreement. It provides an understanding about the purpose of the TRIPS Agreement in relation to public health issues, which should guide any future rulings by panels and the Appellate Body dealing with such issues.