[Ip-health] While a major victory for Australia and public health, the WTO Appellate Body failed to address the legal status of the Doha Declaration

James Love james.love at keionline.org
Tue Jun 16 10:09:59 PDT 2020


Below is a link to and the text of a blog by Luis Gil Abinader, regarding
the recent WTO Appellate Body decision on the Australia regulation of
tobacco packaging.

The original WTO case on Australia's regulation of tobacco packaging was an
important victory for those wanting to discourage smoking because of its
well documented harm to a smoker's health. Part of that decision was a
finding that a 2001 WTO Doha Agreement on TRIPS and Public Health was both
relevant and a binding interpretation of the agreement.

Honduras challenged the original panel report and attacked the finding on
the application of the Doha Declaration.  The appellate body upheld the
Australia regulation, which was very good news, but it dodged the question
of the legal standing of the Doha Declaration on TRIPS and Public Health.
The United States and Australia had asked the Appellate body to not make a
finding on the legal standing of the Doha Declaration, and that's exactly
what happened.

We are disappointed that the original panel statement regarding the Doha
Declaration's legal standing was not addressed, but pleased that the WTO
sees both Articles 7 and 8 of the TRIPS as providing broad and
consequential support for health measures.

Jamie

Luis's commentary follows:

---------------
https://www.keionline.org/33332

While a major victory for Australia and public health, the WTO Appellate
Body failed to address the legal status of the Doha Declaration

Posted on June 15, 2020 by Luis Gil Abinader

On June 9, 2020, the World Trade Organization (WTO) Appellate Body
circulated its reports relating to the Australia – Tobacco Plain Packaging
cases. The reports issued the decision regarding the appeals brought by
Honduras and the Dominican Republic against the findings of the WTO Dispute
Settlement Body (DSB) panels and will likely be the last by the Appellate
Body in the foreseeable future. A copy of the reports is available here. (
https://www.wto.org/english/news_e/news20_e/435_441abr_e.htm)

This dispute examined the TRIPS-consistency of Australian laws that
regulate tobacco products by imposing restrictions to their trademarks and
their packaging. These restrictions are meant to discourage smoking by
making the packaging less appealing.

The Appellate Body upheld all of the panel’s findings, concluding that the
regulations requiring the plain packaging of tobacco products are
compatible with Australia’s WTO commitments, including those relating to
trademark protection.

One key aspect of the reports circulated last week, however, dodged an
important issue: the legal standing of the 2001 Doha Declaration on TRIPS
and Public Health.

KEI has previously analyzed (https://www.keionline.org/28950) the original
panel reports. An important reasoning of the original panel is provided in
paragraphs 7.2407 to 7.2411 of the reports, which examined the relation
between the Doha Declaration and the TRIPS Agreement. In paragraph 7.2410,
the reports concluded that “[t]he 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.”

================
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.
================

Honduras appealed this portion of the reports (WT/DS435/23, page 2) and the
Dominican Republic incorporated by reference the claims made by Honduras
(WT/DS441/23, paragraph 16). Honduras argued that “the Panel err[ed] in law
in its analysis by finding that paragraph 5 of the Doha Declaration on the
TRIPS Agreement and Public Health constitutes a subsequent agreement under
Article 31.3(a) of the Vienna Convention on the Law of Treaties.”
(WT/DS435/23, page 2) In Honduras’ view, the Doha Declaration “relates to
the question of access to medicines and patents, and does not relate to any
provisions of the TRIPS Agreement concerning trademarks.” (WT/DS435/AB/R,
paragraph 6.656)

In their response to the appeals brought by Honduras and the Dominican
Republic, Australia argued that the panel cited the Doha Declaration “to
merely confirm that public health considerations are ‘unquestionably’ among
the societal interests that can ‘justify’ an encumbrance upon the use of
trademarks.” (Appellee Submission of Australia, paragraph 242) In the
opinion of Australia, “[w]hether or not the Doha Declaration constitutes a
subsequent agreement… is ultimately beside the point” because “Article 8.1
of the TRIPS Agreement by itself, makes clear that Members may adopt
measures necessary for the protection of public health.” (Appellee
Submission of Australia, paragraph 242)

As a third party participant in this dispute, the United States filed a
submission relating to the appeals by Honduras and the Dominican Republic.
The United States said that “[t]he issue of whether statements agreed by
Members may constitute a ‘subsequent agreement on interpretation’ has
raised difficulties for the functioning of some WTO committees.” (U.S.
third participant submission, paragraph 14,
https://ustr.gov/sites/default/files/enforcement/WTO/US.3d.Ptcpt.Sub.fin.pdf)
The United States further said that “[r]ather than engage in this appeal on
this issue, the Appellate Body could instead exercise judicial economy over
Honduras’s claim of error, which has no bearing on the outcome of any
appeal of the Panel’s legal interpretation or conclusion under Article 20.”

The Appellate Body addressed these arguments in paragraphs 6.656-6.659,
copied below.

==================

6.656. Finally, Honduras asserts that the Panel erred in relying on the
Doha Declaration in its interpretation of Article 20. In Honduras’ view,
the Doha Declaration is not relevant to the interpretation of Article 20
because “it relates to the question of access to medicines and patents, and
does not relate to any provisions of the TRIPS Agreement concerning
trademarks.” fn/1691 According to Honduras, “[t]he Doha Declaration is not,
and was never intended to be, a more general declaration that would seek to
allow Members to adopt public health related measures in violation of the
TRIPS Agreement in general or of the section on trademarks in particular.”
fn/1692 Australia responds that the Panel referred to the Doha Declaration
to merely confirm that public health considerations are “unquestionably”
among the societal interests that can “justify” an encumbrance upon the use
of trademarks. fn/1693 In Australia’s view, in any event, “[w]hether or not
the Doha Declaration constitutes a subsequent agreement… is ultimately
beside the point” because “Article 8.1 of the TRIPS Agreement, by itself,
makes clear that Members may adopt measures necessary for the protection of
public health.” fn/1694



6.657. We recall that paragraph 5(a) of the Doha Declaration 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.” We agree with the Panel that
paragraph 5(a) of the Doha Declaration reflects “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”.fn/1695
Accordingly, regardless of the legal status of the Doha Declaration, we see
no error in the Panel’s reliance on this general principle of treaty
interpretation.



6.658. Furthermore, we note that the Panel referred to paragraph 5(a) of
the Doha Declaration to confirm that “Articles 7 and 8 of the TRIPS
Agreement provide important context for the interpretation of Article 20.”
fn/1696 It appears that the Panel had reached the conclusion about the
contextual relevance of Articles 7 and 8 of the TRIPS Agreement before it
turned to paragraph 5(a) the Doha Declaration and used the latter to simply
reconfirm its view. fn/1697 In particular, before turning to the Doha
Declaration, the Panel observed that “Article 8 offers … useful contextual
guidance for the interpretation of the term ‘unjustifiably’ in Article 20.”
fn/1698 The Panel also remarked that the societal interests referred to in
Article 8 may provide a basis of the justification of measures under
Article 20. fn/1699 Thus, we agree with Australia that, in any event, the
reliance on the Doha Declaration was not of decisive importance for the
Panel’s reasoning since the Panel had reached its conclusions about the
contextual relevance of Articles 7 and 8 of the TRIPS Agreement to the
interpretation of Article 20 before it turned to the Doha Declaration. The
Panel relied on the Doha Declaration simply to reconfirm its previous
conclusions regarding the contextual relevance of Articles 7 and 8 of the
TRIPS Agreement.



6.659. In sum, the ordinary meaning of the term “unjustifiably”, as read in
the context of other provisions of the TRIPS Agreement, indicates that
Members enjoy a certain degree of discretion in imposing encumbrances on
the use of trademarks under Article 20 of the TRIPS Agreement. fn/1700 In
order to establish that the use of a trademark in the course of trade is
being unjustifiably encumbered by special requirements, the complainant has
to demonstrate that a policy objective pursued by a Member imposing special
requirements does not sufficiently support the encumbrances that result
from such special requirements. We agree with the Panel that such a
demonstration could include a consideration of: (i) the nature and extent
of encumbrances resulting from special requirements, taking into account
the legitimate interest of the trademark owner in using its trademark in
the course of trade; (ii) the reasons for the imposition of special
requirements; and (iii) a demonstration of how the reasons for the
imposition of special requirements support the resulting encumbrances.



fn/1691 Honduras’ appellant’s submission, para. 256.
fn/1692 Honduras’ appellant’s submission, para. 256.
fn/1693 Australia’s appellee’s submission, para. 242.
fn/1694 Australia’s appellee’s submission, para. 242.
fn/1695 Panel Report, para. 7.2411.
fn/1696 Panel Report, para. 7.2411.
fn/1697 Panel Report, paras. 7.2402-7.2406. In particular, before turning
to paragraph 5(a) of the Doha Declaration, the Panel concluded that
Articles 7 and 8 of the TRIPS Agreement “provide relevant context” to
Article 20. (Ibid., para. 7.2399)
fn/1698 Panel Report, para. 7.2404.
fn/1699 Panel Report, para. 7.2406.
fn/1700 The degree of discretion reflected through the term “unjustifiably”
in Article 20 is higher than it would have been, had the term reflecting
the notion of “necessity” been used in this provision.

==================


According to paragraph 6.657 above, the Appellate Body reached its
conclusions “regardless of the legal status of the Doha Declaration.” This
is somewhat disappointing, although better than a finding dismissing the
legal status of the 2001 Declaration.

The panel reports made a clear statement about the legal status of the Doha
Declaration, and the Appellate Body decided to resolve the case without
taking a stance on the status of the Doha Declaration. This was also not
the worst case scenario, which would have been to contradict paragraph
7.2410 of the panel reports – which Honduras sought in their appeal.
Instead, the Appellate Body concluded that “the reliance on the Doha
Declaration was not of decisive importance for the Panel’s reasoning since
the Panel had reached its conclusions about the contextual relevance of
Articles 7 and 8 of the TRIPS Agreement to the interpretation of Article 20
before it turned to the Doha Declaration.”

Despite the silence of the Appellate Body regarding the legal status of the
Doha Declaration with respect to the TRIPS agreements, the reports upheld
all of the findings by the panel in favor of Australia. Noticeably, in
interpreting the ordinary meaning of the term “unjustifiably” the Appellate
Body concluded that WTO members “enjoy a certain degree of discretion in
imposing encumbrances on the use of trademarks under Article 20 of the
TRIPS Agreement.” (WT/DS435/AB/R and WT/DS441/AB/R, paragraph 6.659) This
and other findings in favor of plain packaging are, overall, a decisive
victory for public health.

Finally, the decision does provide a robust interpretation of the
importance of Part 1 of the TRIPS and Articles 7 and 8 in particular, and
this will be important for future intellectual property disputes involving
matters other than health, including those relating to social and economic
welfare, and the public interest in sectors of vital importance to
countries’ socio-economic and technological development.


==================

AGREEMENT ON TRADE-RELATED ASPECTS OF INTELLECTUAL PROPERTY RIGHTS

Article 7, Objectives

The protection and enforcement of intellectual property rights should
contribute to the promotion of technological innovation and to the transfer
and dissemination of technology, to the mutual advantage of producers and
users of technological knowledge and in a manner conducive to social and
economic welfare, and to a balance of rights and obligations.

Article 8, Principles

1. Members may, in formulating or amending their laws and regulations,
adopt measures necessary to protect public health and nutrition, and to
promote the public interest in sectors of vital importance to their
socio-economic and technological development, provided that such measures
are consistent with the provisions of this Agreement.

2. Appropriate measures, provided that they are consistent with the
provisions of this Agreement, may be needed to prevent the abuse of
intellectual property rights by right holders or the resort to practices
which unreasonably restrain trade or adversely affect the international
transfer of technology.


-- 
James Love.  Knowledge Ecology International
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