Declaration on TRIPS and Public Health

The Doha Declaration on the TRIPS Agreement and Public Health was approved by the WTO Ministerial Conference of 2001 on November 14, 2001 as a separated declaration in the interest of supporting the interest of public health, particularly in developing countries considering the TRIPS (Trade-Related Aspects of Intellectual Property rights) Agreement and WTO intellectual property rules (World Trade Organization [WTO], 2001b). The main concern of the declaration was in regard to the capacity of countries to import and produce affordable drugs and reaffirmed the right to export and import legitimate medicines at lower prices (WTO, 2001a).

In a nutshell, Because of patent laws and intellectual property rules, it was viewed the pharmaceutical companies had an unfair advantage or control over the development of medicines which deterred the development of affordable medicine for the critical health issue like HIV/AIDS, malaria, and tuberculosis among others (Devaiah, 2004). Under the Declaration on the TRIPS Agreement and Public Health, countries are to be given greater leverage to access the affordable drugs in the interest of public health (Attaran, 2004).

Thus, the declaration was designed to provide countries the ability to produce, export and parallel trade drugs under patents by virtue of compulsory licenses in the interest of providing universal access to health care. However, according to its critics, the Declaration has not been able to realize its objectives. The provisions of the declaration are seen to be to ideological and allow for various interpretations that has tied issues legally regarding the duress for compulsory licensing years after its Declaration in 2001 (Devaiah, 2004).

One particular provision that has proved to be very problematic is Article 31 (f) which “specified that the generic copies of patented drugs thus produced could only be sold on a country’s domestic market. This rendered compulsory licensing useless for countries lacking sufficient pharmaceutical manufacturing capacity, no matter how severe their public health problems” (The Doha Declaration on Trips and Public Health, Five Years On, 2006).

In an effort to settle the issue, on August 30, 2003, the WTO issues the a temporary waiver of the requirement that medicines produced under the auspices of compulsory license be restricted to the domestic market, pending an amendment of the TRIPS agreement which instead of easing access has even increased the cost of importing drugs because of the requirement set for the waiver. Despite the criticisms, the August 30, 2003 waiver was passed by the WTO in December of 2005.

Brazilian trade diplomat Guilherme de Aguiar Patriota said that the Declaration can be valued for its “politically symbolic importance” in raising the issue of access to drugs and medical care in a global level. However Correa (2002) is right in realizing that it still needs a significant amount of work to be fully realized because of the conflicting interest of companies and the Declaration. In conclusion, unless the Declaration gains the support of the pharmaceutical industries and more countries can have the resources to take advantage of it the objectives of the declaration can not be realized.