Access to Medicines, Article 30 of TRIPS in the Doha Declaration and an Anthropological Critique of International Treaty Negotiations

Abstract

Para 6 of the Doha Declaration became an important issue because its solution as suggested by various countries in the form of draft proposals was perceived as changing the basic features of the TRIPS Agreement. Once the USA along with its allies the EC, Japan and Switzerland did not agree with developing countries proposals to permit export of patented products under Article 30 of TRIPS to the countries without any capacity or insufficient capacity to manufacture the patented product, the stage was set for a long and arduous negotiation. Developed countries introduced Article 31 solution with an extensive introduction of regulations under the pretext that the existing enforcement measures under the TRIPS Agreement addresses the possibility of patent infringement and not the trade diversion. The reasoning given appears to be incorrect and wrongly raised particularly when the EC had specifically raised this issue of diversion in case of WTO Dispute in Canada-Patent Protection and the Panel had observed as per Canadian argument that any diversion of patented products is the responsibility of patent holder through private infringement action. It appears that what the EC couldn't get through the Panel in Canada Patent Protection dispute, it is trying to get it through Para 6 of the Doha Declaration negotiations. The proposals from both the EC and the USA and repeated by Frederick Abbott asserting that the authoritative interpretation do not have legal certainty till it is decided by the Appellate Body has been decided by the Appellate Body in Japan-Alcoholic Dispute where the Appellate Body observed that the decisions of the Panel and the Appellate Body is binding only on the parties concerned and only by the authoritative interpretations of the Ministerial Conference, an interpretations can be made binding on the WTO Members as a whole. The incapacity or insufficient capacity of the countries to manufacture the patented product raises two other important issues, that of enablement and local working. If the patented product cannot be manufactured because of lack of wherewithals or lack of technically qualified personnel, no patent can be granted for such product. The other issue is that of local working where if the patent is not worked during the specified period i.e. if the patented product has not been manufactured by the patent holder in the territory of the patent, a compulsory license can be granted without payment of any remuneration at all as per Article 5A(2) of the Paris Convention as incorporated in the TRIPS Agreement. All the proposals for the para 6 solutions of the Doha Declaration were combined together for discussion. However, the TRIPS Council Chairman Perez Motta removed all the proposals coming from developing countries while incorporating the restriction on the scope of diseases as desired by the USA and the EC in repetition of the 1990-1991 TRIPS negotiations where in a similar fashion after all the proposals were combined together, Anell and then GATT Chairman Arthur Dunkel removed all the proposals coming from developing countries from the final TRIPS Agreement with Article 1.1 of TRIPS permitting unlimited increase in trade restrictions. The USA tried to put its seal of finality on Perez Motta's note by issuing another document, which it called Moratorium which says that if all the conditions prescribed by Perez Motta are accepted, then the USA would not take any action. The developments during the TRIPS Negotiations and the Para 6 Solution suggest that developing countries' participation in the international negotiations is neither genuine nor effective and the results can only be explained in terms of as a string of negatives-rejection, barriers, repression, denial and dissimulation. The developments leading to Perez Motta's Note and the US Moratorium reflect to a large extent legitimating political power and replacing the privilege of the law with the viewpoint of the objective of certain developed countries.