The relationship between health and trade is an increasingly prominent item on the global noncommunicable diseases (NCDs) agenda. Discussions on trade and investment law challenges to tobacco control, for example, will feature in the upcoming session of the Conference of the Parties (COP) to the WHO Framework Convention on Tobacco Control (FCTC). The COP will consider options to ‘strengthen support' for Parties facing legal threats and challenges, and to ‘enhance multisectoral exchanges' on health and trade. These discussions will take place in the context of ongoing trade and investment disputes challenging Australia's and Uruguay's tobacco packaging laws, as well as threats of legal action against other states seeking to implement NCD prevention measures.
Of course, trade has long been on the agenda in other areas of global health, particularly access to medicines. Developing states' concerns about the impact of the WTO's Trade-Related Aspects of Intellectual Property (TRIPS) Agreement on their ability to address the HIV/AIDS crisis led to the adoption of the Doha Declaration on the TRIPS Agreement and Public Health in 2001. To
what extent can these earlier developments inform newer trade-and-health debates?
In fact, they are directly analogous. The Doha Declaration also applies to NCD prevention measures concerning intellectual property such as certain tobacco control laws. Although adopted in the context of access to HIV/AIDS, tuberculosis, and malaria medicines, the Doha Declaration covers public health concerns more broadly. In particular,
- it is not limited to particular diseases, such as HIV/AIDS, tuberculosis, or malaria.
- it is not limited to particular policy measures, such as measures to promote access to medicines.
Rather, the Doha Declaration is an inclusive document that affirms states' abilities to tackle both present and emerging global health challenges.
What is the Doha Declaration?
The Doha Declaration was adopted by consensus at the WTO Ministerial Conference in Doha in 2001. It affirms the right of states to use what are known as ‘TRIPS flexibilities' - provisions in TRIPS which provide states with policy autonomy for the purposes of achieving non-trade objectives such as protecting public health. The Declaration clarifies and confirms that the TRIPS Agreement should be interpreted and implemented consistently with public health objectives, and that countries may use TRIPS flexibilities (such as compulsory licencing of medicines) to their full extent in dealing with public health concerns.
Two paragraphs of the Doha Declaration are particularly relevant to tobacco control and other NCD prevention measures:
- Paragraph 4, which states that TRIPS ‘does not and should not prevent members from taking measures to protect public health' and that it ‘can and should be interpreted and implemented in a manner supportive of WTO members' right to protect public health'.
- Paragraph 5(a), which states that ‘each provision of the TRIPS Agreement shall be read in the light of the object and purpose of the Agreement' as expressed in TRIPS articles 7 and 8. These articles provide that intellectual property rights should be protected ‘in a manner conducive to social and economic welfare', and that ‘Members may, in formulating or amending their laws and regulations, adopt measures necessary to protect public health and nutrition ... provided that such measures are consistent with the provisions of this Agreement'.
As has been argued elsewhere, TRIPS does not prevent states from taking strong tobacco control measures. The Doha Declaration is nevertheless a useful interpretive tool that strongly affirms the right of states to regulate in the public health.
The Doha Declaration and NCDs
A common myth about the Doha Declaration is that it is limited to infectious diseases such as HIV/AIDS, tuberculosis, and malaria, or that it can only be invoked in the case of an ‘epidemic'. In fact, the wording of the Doha Declaration clearly indicates that it applies to public health more generally.
It is true that the Doha Declaration was negotiated in the political context of the HIV/AIDS crisis. The Declaration explicitly recognises HIV/AIDS, tuberculosis, malaria, and ‘other epidemics' at two points (para 1 and para 5(b)).
However, this does not mean that the Doha Declaration cannot be applied to other health concerns. In both instances, the list of diseases is illustrative, not exhaustive. The first reference to HIV/AIDS, tuberculosis, and malaria speaks of ‘the gravity of public health problems' in developing countries, especially HIV/AIDS, tuberculosis, malaria and other epidemics. The second speaks of ‘public health crises' including the same diseases. Both paragraphs list these diseases as examples of public health problems, not as closed categories. Read as a whole, the Doha Declaration applies to measures to ‘protect public health', not to particular diseases.
Notably, the UN Political Declaration on Non-Communicable Diseases (NCDs) and the Outcomes Document of its 2014 review both affirm that states have the right to fully use TRIPS flexibilities in relation to NCDs.
The Doha Declaration and preventive health measures
Another common myth is that the Doha Declaration is only relevant in the context of access to medicines. This is also an overly restrictive reading of the Declaration.
Although the Doha Declaration addresses many issues specific to access to medicines, it affirms more broadly that TRIPS ‘does not and should not prevent members from taking measures to protect public health.' The next sentence states that members have the ‘right to protect public health and, in particular, to promote access to medicines for all'. The ‘and' and the ‘in particular' clearly indicate that ‘access to medicines for all' is intended to be a subset, not an exhaustive statement, of the general obligation to ‘protect public health'. Supporting this interpretation, the Punta del Este Declaration on the Implementation of the WHO Framework Convention on Tobacco Control cites the Doha Declaration as relevant to tobacco control.
The Doha Declaration is a powerful statement that TRIPS should not prevent a state from taking measures to protect health. Its application will be increasingly important as the global burden of NCDs continues to grow. It is therefore important to appreciate that the Doha Declaration is not limited to specific diseases or health measures. Such limitations are both inconsistent with its wording and contrary to the need to ensure that states are able to deal with emerging health challenges.