The Legal Status of the Doha Declaration

An important issue is whether the Doha Declaration, which explicitly gives members flexibility on the grounds of issuing compulsory license, constitutes a subsequent agreement among the parties that may be considered as part of the appropriate context in interpreting TRIPS. If positive, the declaration then provides crucial clarification that countries have “the right to determine what constitutes a national emergency or other circumstances of extreme urgency” with regard to compulsory license. Some scholars argued that the Declaration is a mere political statement of no interpretive weight.⁷⁹ Others concluded it is, in fact, a

http://www.iatp.org/documents/taking-forward-the-review-of-article-273b-of-the-trips-agreement

78 Carlos M. Correa, TRIPS and Access to rugs: Towards a Solution for Developing Countries without Manufacturing Capacity, 17 Emory Int'l L. Rev. 389, 389-406 (2003).

79 See U.S. Gen. Accounting Office, Intellectual Property--U.S. Trade Policy Guidance on WTO Declaration on Access to Medicines May Need Clarification 3 (GAO 2007) (noting that the United

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subsequent agreement.⁸⁰

According to scholar Gathii, the legal status of the Doha declaration under international law discloses at least three possibilities:⁸¹

2.1.1. As a subsequent agreement under Article 31. §3(a) of the VCLT regarding the interpretation of the TRIPS Agreement.⁸²

Under recent WTO Appellate Body jurisprudence, there is precedent for giving a subsequent agreement between parties to a WTO treaty the same legal status as the WTO treaty.⁸³ The Doha Declaration emerged from the WTO decision-making framework and was issued by the Ministerial Conference at Doha. This is consistent with the WTO’s established practice of decision-making by consensus.⁸⁴ Declarations negotiated through the legislative process

States considers the Doha Declaration to be a political statement that does not modify TRIPS); Press Release, Pharmaceutical Research and Mfrs. of America, WTO Doha Declaration Reaffirms Value of Intellectual Property Protection (Nov. 14, 2001), available at

http://www.phrma.org/mediaroom/press/releases///14.11.2001.310.cfm (stressing that the Declaration was a “political statement”); Press Release, U.S. Trade Representative, Zoellick Says World Has Chosen Path of Hope, Openness, Development and Growth (Nov. 14, 2001) available at http://

www.ustr.gov/Document_Library/Press_Releases/2001/November/USTR_Zoellick_Says_

World_Has_Chosen_Path_of_Hope,_Openness_Development_Growth.html (referring to USTR remarks on Doha Public Health Declaration as a “political signal”). Even some who are sympathetic to the need to accommodate pub-lic health and TRIPS have characterized the Doha Public Health Declaration as a political statement. See, e.g., Walden Bello, Learning from Doha, Dec. 7-9, 2001, http://www.focusweb.org/publications/2001/learning-from-doha.html (suggesting that the importance of the Declaration should not be exaggerated in light of the fact that some statements are merely political); James Love, Consumer Project on Technology, Views on the Draft Declaration on the TRIPS Agreement and Public Health, Nov. 13, 2001,

http://www.focusweb.org/publications/2001/views-on-draft-declaration-on-trips-and-health.html.

80 See, e.g., Carlos Correa, Implications of the Doha Declaration on TRIPS Agreement and Public Health 45(WHO 2002), available

athttp://www.who.int/medicines/areas/policy/WHO_EDM_PAR_2002.3.pdf; Steve Charnovitz, The Legal Status of the Doha Declarations, 5 J. Int'l Econ. L. 207, 211 (2002); Carmen Otero

Garcia-Castrillon, An Approach to the WTO Ministerial Declaration on the TRIPS Agreement and Public Health, 5 J. Int'l Econ. L., 212, 212 (2002); James Gathii, The Legal Status of the Doha Declaration on TRIPS and Public Health Under the Vienna Convention on the Law of Treaties, 15 Harv. J.L. & Tech. 291, 314-16 (2002).

81 James Thuo Gathii, The Legal Status of the Doha Declaration on TRIPS and Public Health under the Vienna Convention on the Law of Treaties, 15 Hav. J. L. & Tech 2, 299 (2002).

82 See VCLT, May 23, 1969, art.31, §3(a), 8 I.L.M. 679, 691-92

83 Japan – Alcohol: Japan – Taxes on Alcoholic Beverages, WT/DS8/AB/R, WT/DS10/AB/R, WT/DS11/AB/R, adopted 1 November 1996 [24].

84 Art. IX(1) of the Agreement Establishing the World Trade Organization, 1994. Art.

Art.IX(2)provides that the “Ministerial Conference and the General Council shall have the exclusive

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of the WTO have been used to interpret substantive provisions of WTO treaties. Thus, the Doha Declaration proposes a balancing approach to interpretation of the TRIPS Agreement and interpreting specific provisions of the TRIPS Agreement.

2.1.2. As evidence of subsequent practice establishing the understanding of WTO members regarding interpretation of the TRIPS Agreement

Pursuant to the Declaration’s exhortation that all provisions of the TRIPS Agreement be read in light of its objectives and principles, it is untenable to suggest that the invocation of compulsory licensing under Article 31 to address a public health emergency would necessarily be overridden by the provision of Article 27.1 on patent right or even the rights to normal exploitation and legitimate interests of patent owners referred to in Article 30.

Article 31 § 3(b) of the VCLT describes the role of subsequent practice in treaty interpretation:”subsequent practice…establishes the agreement of the parties regarding its interpretation.”⁸⁵ “Agreement ” includes both agreement in writing, such as the Doha Declaration, as well as agreement manifested by conduct, such as subsequent practice.⁸⁶

2.1.3. As a declaration of commitment and intent that does not constitute an enforceable legal obligation

The Doha Declaration’s legally binding status depends on the

authority to adopt interpretations of…[WTO]agreement .” It further provides that the interpretation of the WTO Agreement such as TRIPS would be made on the recommendation of the Council overseeing the implementation of that Agreement.

85 VCLT, May 23, 1969, art. 31, § 3(b), 8 I.L.M. 679, 691-2 (1969)

86 Humphrey Waldock, Sixth Report on the Law of Treaties, 2 INT’L LAWCOMM’N 51, 99 (1996)

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circumstances in which it was formulated, specific wording, subject matter, and the degree of support.⁸⁷ Where vast majority of States signify their acceptance to a declaration, this can be equivalent to codification of customary international law.⁸⁸ Not a single WTO member dissented from or abstained from voting for the Doha