The Doha Declaration on the Trips Agreement and Public Health, Access to Pharmaceuticals, and Options Under WTO Law
19 Pages Posted: 13 Nov 2002
The WTO Ministerial recently agreed the Doha Declaration on Public Health, whose political goal is "to promote access to [patented] medicines" in developing countries. This mandate is given to TRIPS Council, who must report by the end of 2002 on solutions to this problem.
I argue in this paper that the pharmaceuticals access problem is, at best, imperfectly remediable by TRIPS Council; and of the options it can choose, the best is to decide that actions to improve access to patented pharmaceuticals are conditionally non-justiciable for the purposes of WTO dispute settlement. This can be done quickly without needing to amend or re-interpret TRIPS itself; and favorable precedents of conditional non-justiciability exist elsewhere in WTO law.
Leaving TRIPS aside, however, the more immediate benefit of the Doha Declaration for pharmaceuticals access results by applying it to GATT. Steps to promote differential pricing of pharmaceuticals for poor countries, or to reduce import tariffs and prices, are both consistent with the Declaration and fall within the jurisdiction of GATT. I propose that a single decision of the WTO Ministerial, taken by consensus, is sufficient to simultaneously address a number of pharmaceutical access issues arising under TRIPS and GATT, yielding the maximum benefit for public health.
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