LEGAL STATUS OF THE DOHA DECLARATIONS

Legal Status Of The Doha Declarations



Abstract

The World Trade Organisation's Declaration on the TRIPS Agreement and Public Health (known as the Doha Declaration) of 2001, and subsequent Decision on the Interpretation of Paragraph 6 reached in 2003, affirmed the flexibilities available under the Agreement on Trade Related Property Rights (TRIPS) to member states seeking to protect public health. Here we have to argue the statement that The Doha Declarations have no legal status in international law. There are also concerns that so-called TRIPS-plus measures within many regional and bilateral trade agreements are further undermining the capacity of the poor to access affordable productss. The paper reviews policy debates among governments, nongovernmental organisations and international organisations from 1995, and notably since 2003, surrounding access to productss and trade agreements. The provisions for protecting public health provided by the Doha Declaration and Paragraph 6 Decision are reviewed in terms of challenges for implementation, along with measures to protect intellectual property rights (IPRs) under selected regional and bilateral trade agreements. More intransigent have been stark inequalities in power and influence among trading nations, leaving LMICs vulnerable to pressures to permit the globalization of IPRs in order to protect broader trade and economic interests. Such inequalities are apparent in proposals or adopted TRIPS-plus measures which re-establish the primacy of trade over public health goals. Despite being hailed as a "watershed in international trade", the Doha Declaration and Paragraph 6 decision have not resolved the problem of access to affordable productss. The way forward must begin with a simplification of their content, to enable actual implementation. More fundamentally, once agreed, public health protections under TRIPS must be recognised as taking precedent over measures subsequently adopted under other trade agreements. This requires, above all, setting aside such protections as a basic need and shared goal from trade negotiations at all levels.

Table of contents

Abstract2

Introduction5

Background6

TRIPS, the Doha Declaration and Paragraph 6 decision: When public health protection takes primacy over trade7

The extension of patent rights10

Need for National Laws11

Reaffirming access to productss as a global priority: What can be done?12

Conclusion16

References17

Legal Status Of The Doha Declarations

Introduction

Unlike the system of trade liberalization in the World Trade Organization (WTO), there has never been a comprehensive, multilateral agreement on foreign investment. Binding international initiatives on foreign investment exist largely at the bilateral, regional and sectoral levels. This is despite exponential growth in rates of foreign investment and the increasing complementarity of trade and investment as strategies for penetrating domestic markets. At the Fourth WTO Ministerial Conference at Doha in Qatar, agreement appears to have been reached to commence investment negotiations at the Fifth Ministerial Conference in Mexico in 2003. Yet, it was only in 1998 that similar negotiations in the Organisation for Economic Co-Operation and Development (OECD) towards a Multilateral Agreement on Investment (MAI) ended without result. The MAI provisions themselves were heavily influenced by the detailed investment provisions in Chapter 11 of the North American Free Trade Agreement (NAFTA). Somewhat unexpectedly, uncertainty surrounds the exact parameters of the ...