possible leeway granted to developing countries. The United States and European Union
sought to limit the extent of the concessions made on TRIPS in the Doha Declaration to
the least developed countries and low-income developing countries.
The U.S. went so
far as to push for limiting TRIPS flexibility to HIV/AIDS, tuberculosis, and malaria,
excluding the “other epidemics” language from the Doha Declaration.
Like Doha, and in contrast to the original TRIPS accord, NGOs were heavily
involved in these negotiations between November 2001 and August 2003.
Doha, however, the United States did not feel compelled to secure an agreement at a
particular time. As a result, the USTR blocked an agreement from being reached by the
desired deadline because of concerns over the draft language. The end result was in
rough accord with great power preferences: The scope of importation primarily benefited
the least developed countries, with strict limits put on parallel importation in developing
countries. Procedural barriers limit but do not exclude the use of TRIPS flexibilities by
other developing countries, conforming to American and European preferences.
Reviewing the negotiation history, Duncan Matthews concluded: “ultimately the
outcome, characterized by the dominance of the US and the EU as key international
actors, coupled with the reluctance of developing country governments to ultimately
oppose the US approach in the face of negotiating fatigue and the threat of bilateral trade
sanctions, is remarkably familiar and repeats the pattern of earlier negotiations.”
Great power behavior before and after Doha would suggest very little
internalization of global civil society’s preferred “public health” frame in thinking about
TRIPS. However, one possibility is that the United States government has adopted a
different variation of the same frame. For example, in discussing the enforcement of
intellectual property rights, the Office of the USTR repeatedly stresses the public health
benefits that accrue from intellectual property protections. A July 2004 USTR fact sheet
points out that because of the TRIPS-plus protections in the Jordan FTA, drug innovation
in that country dramatically increased.
Economists and lawyers have argued that more
116
Duncan Matthews, “WTO Decision on Implementation of Paragraph 6 of the Doha Declaration on the
TRIPS Agreement and Public Health,” Journal of International Economic Law 7 (Winter 2004): 73-107.
117
The USTR was concerned that the “other epidemics” language would be broadly construed to include
“lifestyle” diseases such as obesity. Ibid., p. 86.
118
Ibid., p. 84; Abbott, “The WTO Medicines Decision,” p. 328.
119
Matthews, “WTO Decision on Implementation of Paragraph 6,” p. 105; for a more GCS-friendly
interpretation, see Abbott, “The WTO Medicines Decision.”
120
Office of the USTR, “Fact Sheet on Access to Medicines,” July 2004. Accessed at
29
Convention