The Doha Declaration is a strong political statement that can make it easier for developing countries to adopt measures necessary to ensure access to health care without the fear of being dragged into a legal battle124. The Declaration is also a Ministerial decision125 with legal effects on the Member States and on the WTO bodies, particularly the Dispute Settlement Body and the Council for TRIPS126. It states the purpose of the TRIPS Agreement in the area of public health, interprets the TRIPS Agreement with regard to some important aspects, instructs the Council for TRIPS to take action, and decides on the implementation of the transitional provisions for LDCs.
124 See e.g. Weisbrot, 2002, p. 16; Raja, 2001, p. 14.
125 See article IX.1 of the WTO Agreement.
126 It should be noted that the Ministerial Conference rejected proposed language (“Desiring to clarify the provisions of the TRIPS Agreement, while preserving the rights and obligations of Members under the Agreement”) that would have suggested that the Declaration would only clarify provisions of the TRIPS Agreement.
A “declaration” has no specific legal status in the framework of WTO law127; it is not strictly an authoritative interpretation in terms of Article IX.2 of the Marrakesh Agreement Establishing the WTO. However, given the content and mode of approval of the Doha Declaration, it can be argued that it has the same effects as an authoritative interpretation. In particular, in providing an agreed understanding on certain aspects of the TRIPS Agreement in paragraph 5, Members have created a binding precedent for future panels and Appellate Body reports. According to the European Commission,
“in the case of disputes (e.g. in the context of WTO dispute settlement procedures) Members can avail themselves of the comfort provided by this Declaration. Panelists are likely to take account of the provisions of the TRIPS Agreement themselves as well as of this complementary Declaration, which, although it was not meant to affect Members’ rights and obligations, expresses the Members’ views and intentions. Hence, the Declaration is part of the context of the TRIPS Agreement, which, according to the rules of treaty interpretation, has to be taken into account when interpreting the Agreement”128.
127 The WTO adopted several “declarations” prior to the document examined here: “Declaration on the Contribution of The World Trade Organization to Achieving Greater Coherence In Global Economic Policymaking”; “Declaration on the Relationship of the World Trade Organization with the International Monetary Fund”; “Declaration on the Dispute Settlement Pursuant to the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 or Part V of the Agreement on Subsidies and Countervailing Measures”.
128 European Commission, 2001, p. 2. Se also Vandoren (2002), who notes that “the Declaration provides comfort to Members in the case of disputes...A Member whose legislation is being challenged by another Member because of alleged incompatibility with the TRIPS Agreement can refer to the contents of this Declaration in support of the measures under dispute, where relevant...and panelists are likely to take account of this complementary Declaration as well as the provisions of the TRIPS Agreement in their decisions” (p. 8).
Moreover, the Declaration can be regarded as a “subsequent agreement” between the parties regarding the interpretation of a treaty or the application of its provisions, under Article 31.3 (a) of the Vienna Convention on the Law of the Treaties.
Any WTO Member could bring a complaint under the DSU on issues covered by the Doha Declaration129, and it would be theoretically possible for a panel or the Appellate Body to find an inconsistency between the Doha Declaration and the TRIPS Agreement itself. This is unlikely, however, since in adopting the Declaration, Members have exercised their exclusive competence to interpret a WTO agreement130, and it would be extremely difficult to challenge the adopted interpretation.
129 See Gillespie-White, 2001.
130 Panels and the Appellate Body can only “clarify” the provisions of the WTO agreements; they “cannot add or diminish the rights and obligations provided in the covered agreements” (article 3.2 of the Dispute Settlement Understanding).
It should be stressed, however, as mentioned above, that the Doha Declaration is not self-executing and both developed and developing countries should adopt the legal amendments necessary to implement it. Developing countries, in particular, should ensure that they are using to the full extent possible the flexibilities allowed by the TRIPS Agreement to protect public health and facilitate access to health care by all.