[Ip-health] WTO panel finds 2001 Doha Declaration on the TRIPS Agreement and Public Health is an agreement between members

Luis Gil Abinader luis.gil.abinader at keionline.org
Wed Sep 19 08:48:44 PDT 2018


https://www.keionline.org/28950

The panel in a WTO dispute regarding Australia and plain packaging of
tobacco products reached the conclusion that 2001 Doha Declaration on the
TRIPS Agreement and Public Health has the status of an agreement that has
modified the interpretation of the TRIPS.

This is a brief note regarding a finding by a WTO panel that was circulated
June 28, 2018 and adopted on August 28, 2018, regarding the status of the
2001 Doha Declaration on TRIPS and Public Health.

On June 28, 2018, the World Trade Organization (WTO) circulated the panels
reports in the cases brought by Honduras, the Dominican Republic, Cuba and
Indonesia in Australia – Plain Packaging (DS435, DS441, DS458 and DS467).
This dispute examined the TRIPS-consistency of certain Australian laws and
regulations that impose restrictions on trademarks, geographical
indications, and other plain packaging requirements that regulate tobacco
products and their packaging.

The reports circulated on June 2018 determined that the November 14, 2001
Doha Declaration on the TRIPS and Public Health is “considered to
constitute a ‘subsequent agreement’ of WTO Members within the meaning of
Article 31(3)(a) of the Vienna Convention,” and also that the 2001
Declaration applies broadly to health issues, including in this case, to
the control of tobacco use.

As has been reportedly widely, the panels found that the complainants
failed to demonstrate that the plain packs regulations were inconsistent
with Australia’s obligations under the TRIPS Agreement, an outcome that can
be considered a victory for public health. The findings on the Doha
Declaration were also important, and came while the UN was debating efforts
to cite the Doha Declaration in a political declaration about the
prevention and control of non-communicable diseases, like cancer or
diabetes.

The full panel reports, in the form of a single document constituting four
separate panel reports, is available here:
https://www.keionline.org/wp-content/uploads/2018/09/WTO-Australia-Tobacco-reports.pdf

Honduras and the Dominican Republic filed appeals against the panels
findings. These appeals will now be heard by three members of the permanent
Appellate Body.

Paragraphs 7.2407 to 7.2411 of the reports examine the relation between the
Doha Declaration and the TRIPS Agreement, concluding that the “The terms
and contents of the decision adopting the Doha Declaration express, in our
view, an agreement between Members on the approach to be followed in
interpreting the provisions of the TRIPS Agreement”. These paragraphs are
excerpted below.

---------------------------------

7.2407. We note in this respect that the Doha Declaration, adopted by
Ministers on 14 November 2001, provides that, “[i]n 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”./fn 5009/

7.2408. While this statement was made in the specific context of a
re-affirmation by Members of the flexibilities provided in the TRIPS
Agreement in relation to measures taken for the protection of public
health, we note that paragraph 5 of the Doha Declaration is formulated in
general terms, inviting the interpreter of the TRIPS Agreement to read
“each provision of the TRIPS Agreement” in the light of the object and
purpose of the Agreement, as expressed in particular in its objectives and
principles. As described above, Articles 7 and 8 have central relevance in
establishing the objectives and principles that, according to the Doha
Declaration, express the object and purpose of the TRIPS Agreement relevant
to its interpretation.

7.2409. This paragraph of the Doha Declaration may, in our view, be
considered to constitute a “subsequent agreement” of WTO Members within the
meaning of Article 31(3)(a) of the Vienna Convention. As the Appellate Body
has clarified: Based on the text of Article 31(3)(a) of the Vienna
Convention, we consider that a decision adopted by Members may qualify as a
“subsequent agreement between the parties” regarding the interpretation of
a covered agreement or the application of its provisions if: (i) the
decision is, in a temporal sense, adopted subsequent to the relevant
covered agreement; and (ii) the terms and content of the decision express
an agreement between Members on the interpretation or application of a
provision of WTO law. /fn 5010/

7.2410. In this instance, the instrument at issue is a “declaration”,
rather than a “decision”. However, the Doha Declaration was adopted by a
consensus decision of WTO Members, at the highest level, on 14 November
2001 on the occasion of the Fourth Ministerial Conference of the WTO,
subsequent to the adoption of the WTO Agreement, Annex 1C of which
comprises the TRIPS Agreement. The terms and contents of the decision
adopting the Doha Declaration express, in our view, an agreement between
Members on the approach to be followed in interpreting the provisions of
the TRIPS Agreement. This agreement, rather than reflecting a particular
interpretation of a specific provision of the TRIPS Agreement, confirms the
manner in which “each provision” of the Agreement must be interpreted, and
thus “bears specifically” /fn 5011/ on the interpretation of each provision
of the TRIPS Agreement.

7.2411. The guidance provided by the Doha Declaration is consistent, as the
Declaration itself suggests, with the applicable rules of interpretation,
which require a treaty interpreter to take account of the context and
object and purpose of the treaty being interpreted, and confirms in our
view that Articles 7 and 8 of the TRIPS Agreement provide important context
for the interpretation of Article 20.

Source: DS441: Reports of Panels. Australia — Certain Measures Concerning
Trademarks, Geographical Indications and Other Plain Packaging Requirements
Applicable to Tobacco Products and Packaging, WT/DS435/R, WT/DS441/R,
WT/DS458/R, WT/DS467/R, 28 June 2018.


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