GDAE Working Paper No. 09-01 Resources, Rules and International Political Economy
agreement.21 The campaign came to the fore in 2001, with a joint WHO/WTO conference
on affordable medicines, two Special Sessions of the TRIPS Council dedicated to the
same topic, and the WTO’s Fourth Ministerial Meeting in Doha. A coalition of more than
fifty developing countries sought to use the Ministerial meeting to affirm their rights
under TRIPS - to gain assurances that they could use the TRIPS flexibilities for public
health purposes without having to worry about reprisals. To that end, they demanded a
Ministerial Statement that would eliminate any outstanding ambiguities and uncertainties
in TRIPS, and thus shield countries from external pressures that challenged their use of
TRIPS-acceptable flexibilities to secure access to essential medicines.22
The ensuing statement took the form of the “Doha Declaration on the TRIPS
Agreement and Public Health.”23 The Doha Declaration was brief, a seven-section
statement, less than two pages long, that was designed to clarify members’ obligations
and rights under TRIPS. The fourth section, which noted that TRIPS “does not and
should not prevent members from taking measures to protect public health,” includes as a
separate paragraph the critical affirmation of developing countries’ rights “to use, to the
full, the provisions in the TRIPS Agreement, which provide flexibility for this purpose.”
The declaration also clarifies countries’ rights under Article 31 to issue compulsory
licenses: “Each member has the right to grant compulsory licenses and the freedom to
determine the grounds upon which such licenses are granted.”
The Doha Declaration marks the culmination of a successful campaign to
strengthen the multilateral system, in that it can protect developing countries from
opportunistic behaviour of developed countries that pressure for TRIPS Plus.24 To be
sure, the Doha Declaration cannot directly constrain the USTR: - nothing agreed at the
WTO could guarantee that the US will not continue to subject countries unilaterally to its
own TRIPS Plus standards. Yet the Doha Declaration potentially raises the associated
political costs of this sort of opportunistic behavior, for it makes it clear that when the
U.S. (or other developed countries) act in this way, they, and not the developing
countries, are violating the WTO’s rules.25 It makes it more obvious that when the US
pursues an aggressive TRIPS Plus agenda within the WTO, it is undermining and
violating its own multilateral commitments. And while such violations may not be
effectively punishable at the global level, they may impose reputation costs on violators.
In addition, the agreement provides leverage for domestic political actors who attempt to
hold government officials to their multilateral obligations.26
This analysis speaks to some of the key issues of this chapter regarding resources
and rules in the international political economy. Developing countries’ ability to push
through the Doha Declaration is rooted in the WTO’s consensus rule, which allowed
them to make the clarifying Ministerial statement a condition for the formal launching of
a new round of multilateral trade negotiations. Developing countries blocked the
launching of a new round of multilateral trade negotiations in 1999 at the WTO’s Third
Ministerial in Seattle, and this history could have been repeated two years later in Doha.
Consensus meant that developed countries could not proceed with a new trade round
without the consent of the developing countries, and developing countries would not
provide this consent without the Doha Declaration on TRIPS and Public Health.