Question 3
‘Paragraph 6’ of the Doha Declaration on Public Health instructed the TRIPs council to find a solution to the special problem faced by WTO member countries with insufficient or no manufacturing capacity in pharmaceuticals in making effective use of compulsory licenses under TRIPs. Critically evaluate the solution that has been offered (i.e. ‘Decision of 6 August 2005’ to amend the TRIPS Agreement’)
The Declaration of the TRIPS Agreement and Public Health (the ‘Doha Declaration’) was adopted by the WTO Ministerial Conference 2001 in Doha on 14th, November 2001. This marks the first attempt of an inclusion of international health and development as an interest at the World Trade Organization (WTO). The declaration illumined the problem of pharmaceutical access in many developing countries and reaffirmed the flexible position of TRIPS member states to surpass patent rights in order to promote the access to essential medicine.
In paragraph 6 of the Doha Agreement, the governments agreed that:
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.
The above paragraph highlights the problem in Article 31(f) of the TRIPS agreement. According to Article 31(f), a compulsory license could only be issued to meet demands in the domestic market. This requirement has put into disadvantage many developing countries that neither had any pharmaceutical manufacturing capacity due to the lack of technology, human resources, equipment or economic ability of domestic production, nor the infrastructure in taking advantage of the compulsory licensing provisions.
In other words, paragraph 6 of the Doha Declaration aimed to solve the following problem: how to ensure that in poor countries, where there are urgent needs in ensuring public health but together lacks the capacity of pharmaceutical manufacturing, patents do not damage the availability of medicine at their best prevalent prices?
The paragraph then requests the WTO members, and especially the TRIPS Council to find ‘an expeditious solution’ to solve the problem and to ‘report to the general council before 2002’. As requested, several notable proposals are made by different parties in attempt to solve the problem. In the following, the essay would first analyze paragraph 6 of the Doha Declaration in details. The essay would then critically evaluate the solution offered by the WTO in relation of paragraph 6.
It is important to examine paragraph 6 of the Doha Declaration and understand what exactly is the task set by the WTO before assessing and evaluating any proposals rose in response to paragraph 6. While reading the paragraph closely, one would realize that logical flaws existed while literally interpreting paragraph 6. This would ultimately require TRIPS members to interpret the paragraph in the context of the full Doha Declaration to extract any useful meaning.
Referring to the above full text of paragraph 6, the WTO Ministers expressed confers a mandate for countries which faces the following problems: (a) ‘insufficient and no manufacturing capacities in the pharmaceutical sector’ and (b) ‘difficulties in making effective use of compulsory licensing’. It is arguable to include requirement (b) in the paragraph as this would lead to the exclusion of countries that have no patent rights, but nevertheless are poor and utterly diseased just because it is meaningless to speak of compulsory licensing patents in their case. Moreover, from the literal text, there is curiously no mention of the requirement of a country facing a need in public health. This would lead to the possible inclusion of rich, healthy countries with no pharmaceutical access problems, but
