The Doha Declaration on TRIPS and Public Health, 2001

In one line

It is not an amendment and it is not nothing: it is a Ministerial statement that the Agreement can and should be read to protect public health, and it is authoritative because every Member agreed to it.

What it is

Document WT/MIN(01)/DEC/2, adopted on 14 November 2001 at the Fourth Ministerial Conference at Doha, 9 to 14 November 2001.

Seven paragraphs, adopted by consensus by every Member.

Its legal character. It is not a treaty amendment, and TRIPS was not altered by it. It is best understood as a subsequent agreement between the parties regarding the interpretation of the treaty, within Article 31(3)(a) of the Vienna Convention on the Law of Treaties, which requires such an agreement to be taken into account together with the context in interpreting the treaty.

So it does not change the text. It fixes how the text is to be read, and it does so by the consent of the whole membership, which is the strongest form of interpretive authority a treaty can have short of amendment.

Paragraphs 1 to 3, the premise

Paragraph 1: Members recognise 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.

Paragraph 2: the need for the Agreement to be part of the wider national and international action to address these problems.

Paragraph 3, which is the balanced sentence and is often forgotten: Members recognise that intellectual property protection is important for the development of new medicines, and also recognise the concerns about its effects on prices.

Paragraph 3 is worth quoting in an answer, because it shows the Declaration is not a repudiation of patents.

Paragraph 4, the central statement

"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."

And the second sentence of the paragraph: Members reaffirm the right of WTO Members to use, to the full, the provisions in the TRIPS Agreement, which provide flexibility for this purpose.

Two phrases carry the weight. Does not and should not prevent, which is a statement about the existing text and not a promise of change; and can and should be interpreted and implemented, which is a direction to panels and to legislatures alike.

Paragraph 5, the four flexibilities

Paragraph 5(a), the interpretive rule. 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.