The Declaration on the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) and Public Health was adopted on 14 November 2001 by the 4th World Trade Organization (WTO) Ministerial Meeting at Doha, Qatar. The declaration was made by the highest decision-making body of the WTO, with the aim of promoting a balanced interpretation and implementation of the provisions of the TRIPS Agreement in a manner that is supportive of a WTO Member’s right to protect public health and promote access to medicines for all.

The Doha Declaration reaffirmed that WTO members can make use of the public health related flexibilities of the TRIPS Agreement. However, there is considerable difficulty faced by developing and least developed countries in implementing these flexibilities in practice.

As the WTO conference went on, meetings were organised in Geneva by different stakeholders to commemorate the adoption of the Declaration and critically reflect on its implementation. Side-events included a meeting co-organised by Knowledge Ecology International and the South Centre on 14 November, a conference organised by Médecins Sans Frontières Access Campaign on the 21st, and a seminar organised by the Graduate Institute on the 28th.

Many speakers across the different meetings, while recognising some positive attributes of the Doha Declaration, highlight major constraints to its implementation. There is scope for substantial improvement in implementation of the Doha Declaration.

The South Center has published its Policy Brief No 7 in November 2011 on the state of implementation of the Doha Declaration 10 years later. It presents a detailed analysis of implementation shortcomings and concrete recommendations for improving the use of TRIPs flexibilities in the future.

Analyses converge on a number of issues regarding implementation of the Doha declaration:

  • TRIPS Flexibilities are not much used. The Doha Declaration is not self-executing and requires amendments to national legislations. Lack of appropriate national legislation for fully implementing the TRIPS flexibilities remains a key challenge for developing countries.
  • Relatively few developing countries started issuing compulsory licenses/government use authorizations during the last decade in order to increase access to medicines. In many cases, those were issued for HIV, TB and Malaria drugs, although the Doha Declaration clearly states that compulsory licenses can be issued for public health purposes on any ground, and not limited to situations of HIV/AIDS, TB or malaria. Most regrettably, political considerations continue to weight heavily on developing countries’ decisions to use compulsory licenses.
  • In addition, developing countries are subject to a continued push for TRIPS plus Standards that impose on them, through bilateral agreements, standards of patent protection and enforcement that seriously undermine existing TRIPs flexibilities.
  • Despite the extension of the transition period for LDCs, insufficient progress has taken place in terms of technology transfer and development of local pharmaceutical production capacity.

Looking at potential improvements too, the MSF Access Campaign has organised an ideas contest. The winning proposals explore the ideas of:

  • Automatic License Systems for improving access to prescription medicines in developing and least developed countries through increased competition avoiding monopolistic prices, where patent-holders and licensees negotiate and mutually agree on royalties.
  • Making the TRIPs human rights consistent and development oriented, by reviewing them through engaging all stakeholders, thus promoting greater transparency and accountability, and by turning them into a living instrument.
  • Restoring Policy Space through a 2-steps proposal of making TRIPs coherent with International Human Rights Law, and by excluding essential medicines from patentable subject matters.

All experts intervening in the various meetings recognise that the Doha Declaration remains a useful policy tool but that there is ample scope for better implementation of the TRIPs flexibilities. Many think it pertinent to consider extending the permanent waiver for least developed countries after 2016. Some believe also that treaties can be renegotiated when needed, in order to strengthen their legitimacy and acceptability.

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