The Doha Declaration on TRIPS and Public Health Under the Vienna Convention of the Law of Treaties

Abstract

The Doha Declaration on TRIPS and Public Health was negotiated against a backdrop of disagreements regarding the extent to which the TRIPS Agreement allows WTO member countries to facilitate access to essential medicines to address pandemics such as HIV/AIDS. In this article, I argue that to the extent that interpretations of the TRIPS Agreement based on the text, context, object and purpose, and good faith do not settle divergent interpretations among WTO member states, the Doha Declaration on TRIPS and Public Health has become an element in the interpretation of the TRIPS Agreement. My analysis of the legal status of the Doha Declaration under customary international law discloses at least three possibilities: (1) It is a subsequent agreement under Article 31 Section 3(a) of the Vienna Convention on the Law of Treaties regarding the interpretation of the TRIPS agreement. (2) It evidences or lays a basis for subsequent practice establishing the understanding of WTO members regarding interpretation of the TRIPS Agreement. (3) It is a declaration of commitment and intent that does not constitute an enforceable legal obligation. Among the clarifications that the Declaration makes as an interpretive element, includes its proposal for a balancing approach to interpretation of the TRIPS Agreement. If adopted, a balancing approach would require that the TRIPS Agreement 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. This balancing approach is also consistent with Appellate Body jurisprudence in United States-Shrimp Products where in interpreting the chapeau of GATT's Article XX, the Appellate Body held that the measures falling within the particular exceptions must be applied reasonably, with due regard to both parties concerned. In Hormones, an analogous 'balancing approach' was adopted by the Appellate Body to reverse a Panel decision on the burden of proof with regard to exceptions. The Appellate Body also held that merely characterizing a treaty provision as an 'exception' does not by itself justify a 'stricter' or 'narrower' interpretation of that provision than would be warranted by examination of the ordinary meaning of the actual treaty words, viewed in context and in light of the treaty's object and purpose. Furthermore, the Appellate Body's dicta in United States-Shrimp Products supports reading the TRIPS Agreement in light of contemporary concerns of the community of nations and as such when dealing with AIDS and similar health pandemics such as tuberculosis and malaria a similar argument could be made. The flexibilities built into the TRIPS Agreement through the Declaration arguably include: reading each provision of the TRIPS Agreement in light of the object and purpose as expressed in its objectives and principles; the right to grant compulsory licenses and the freedom to determine the grounds upon which such licenses are granted; the right to determine what constitutes a national emergency or other circumstances of extreme urgency; the freedom to establish their regimes of exhaustion without challenge but subject to the MFN and national treatment provisions; and extension of compliance periods for least developed countries. The Doha Declaration also supports reading all the provisions of the TRIPS Agreement in light of Articles 7 and 8. Interpreting the TRIPS Agreement in light of its principles and objectives does not dictate any particular legal outcome. For example, Articles 7 and 8 do not determine the balance between protection of patent rights under Article 27.1 and the right to compulsory licensing in pursuit of a public health program. What the Doha Declaration, however, does as a matter of law is not insignificant. It mandates reading the TRIPS Agreement in light of its objectives and principles, thereby giving countries a legal basis in the Agreement itself to argue in favor of public policies such as provisioning of medicines to those infected with HIV/AIDS.