TRIPS declaration on public health--final text

This is the declaration that was finally passed after a seemingly unending
Ministerial in Doha--also available on the WTO website:

http://www-heva.wto-ministerial.org/english/thewto_e/minist_e/min01_e/ [2]
min01_e.htm

This is an important declaration that marks an significant if partial
victory for developing countries.

It is important to emphasize that the strong and lasting solidarity
among the countries fighting hardest for this declaration, such as
the Africa Group, against the US-led minority opposition that overtly
sought to divide "developing" from "least developed" countries.

While this represents substantial progress, it is a declaration that is
not as strong as it could have been, thanks to efforts by the US,
Switzerland, Japan, and the EU.

As anticipated, the strongest language fought for by the Africa Group was
watered down--that is, legally binding verbs like "shall" in para 4,
which is the paragraph dictating the interpretation of the operative text,
were stripped and replaced with "can and should" and "does not and should
not" on the insistence of the US, key representative of the vocal minority.

In addition, the US language that replaced Africa Group language in para.
6 defers serious discussion at Doha on compulsory licensing for export
--the US most likely are hoping momentum will be gone from this
issue by the time the TRIPS council meets again in exciting Geneva. Of
course, the time at Doha should have and could have been used to find an
answer to this problem. But rich countries pushed it off the table.

Asia Russell +1 267 475 2645

WORLD TRADE ORGANIZATION

WT/MIN(01)/DEC/W/2
14 November 2001
(01-5770)

MINISTERIAL CONFERENCE
Fourth Session
Doha, 9 - 14 November 2001

DECLARATION ON THE TRIPS AGREEMENT AND PUBLIC HEALTH

1. We recognize the gravity of the public health problems afflicting
many developing and least-developed countries, especially those resulting
from HIV/AIDS, tuberculosis, malaria and other epidemics.

2. We stress the need for the WTO Agreement on Trade-Related Aspects
of Intellectual Property Rights (TRIPS Agreement) to be part of the wider
national and international action to address these problems.

3. We recognize that intellectual property protection is important
for the development of new medicines. We also recognize the concerns
about its effects on prices.

4. We agree that the TRIPS Agreement does not and should not prevent
Members from taking measures to protect public health. Accordingly, while
reiterating our commitment to the TRIPS Agreement, we affirm that the
Agreement can and should 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.

In this connection, we reaffirm the right of WTO Members to use,
to the full, the provisions in the TRIPS Agreement, which provide
flexibility for this purpose.

5. Accordingly and in the light of paragraph 4 above, while
maintaining our commitments in the TRIPS Agreement, we recognize that
these flexibilities include:

(a) In applying the customary rules of interpretation of public
international law, each provision of the TRIPS Agreement shall be read in
the light of the object and purpose of the Agreement as expressed, in
particular, in its objectives and principles.
(b) Each Member has the right to grant compulsory licences and the freedom
to determine the grounds upon which such licences are granted.
(c) Each Member has the right to determine what constitutes a national
emergency or other circumstances of extreme urgency, it being understood
that public health crises, including those relating to HIV/AIDS,
tuberculosis, malaria and other epidemics, can represent a national
emergency or other circumstances of extreme urgency.
(d) The effect of the provisions in the TRIPS Agreement that are relevant
to the exhaustion of intellectual property rights is to leave each Member
free to establish its own regime for such exhaustion without challenge,
subject to the MFN and national treatment provisions of Articles 3 and 4.

6. We recognize that WTO Members with insufficient or no
manufacturing capacities in the pharmaceutical sector could face
difficulties in making effective use of compulsory licensing under the
TRIPS Agreement. We instruct the Council for TRIPS to find an expeditious
solution to this problem and to report to the General Council before the
end of 2002.

7. We reaffirm the commitment of developed-country Members to provide
incentives to their enterprises and institutions to promote and encourage
technology transfer to least-developed country Members pursuant to Article
66.2. We also agree that the least-developed country Members will not be
obliged, with respect to pharmaceutical products, to implement or apply
Sections 5 and 7 of Part II of the TRIPS Agreement or to enforce rights
provided for under these Sections until 1 January 2016, without prejudice
to the right of least-developed country Members to seek other extensions
of the transition periods as provided for in Article 66.1 of the TRIPS
Agreement. We instruct the Council for TRIPS to take the necessary action
to give effect to this pursuant to Article 66.1 of the TRIPS Agreement.

_________

Asia Russell
ACT UP Philadelphia
Health GAP Coalition
[email protected] [3]

--

Paul Davis
[email protected] [4]
Health GAP Coalition
ACT UP Philadelphia

+1.215.474.6886 direct tel.
+1.215.474.4793 fax
+1.215.731.1844 ACT UP