In this post, the last of a series on the recent decision of the WTO’s Appellate Body in the Australia – Plain Packaging case, I want to focus on how both the panel and the Appellate Body approached the issue of the legal status of the Doha Declaration on the TRIPS Agreement and Public Health of 2001.  (For previous posts on this decision, see here, here, and here). It is worth noting at this point that paragraph 5(a) of the Doha Declaration provides that:

In 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.

In addition, the Doha Declaration confirms a number of flexibilities already contained in the TRIPS Agreement that states can use to facilitate access to medicines. It also states that ‘the TRIPS Agreement does not and should not prevent members from taking measures to protect public health’ (para 4).

In its report, the panel cited paragraph 5(a) of the Doha Declaration in support of its decision to interpret the term ‘unjustifiably’ in the light of the object and purpose of the TRIPS Agreement.[1] According to the panel, paragraph 5 of the Doha Declaration may be considered as a subsequent agreement that ought to be taken into account (together with the context) when interpreting the TRIPS Agreement as required by Article 31(3)(a) of the Vienna Convention on the Law of Treaties (VCLT).[2] Furthermore, the Panel stated that the Doha Declaration confirms the manner in which each provision of the TRIPS Agreement must be interpreted[3] and thus its scope is not confined to measures taken to protect public health.[4]

On appeal to the Appellate Body, Honduras questioned the panel’s reliance on the Doha Declaration in its interpretation of Article 20 of the TRIPS Agreement.[5] Crucially, Honduras contended that the Doha Declaration is irrelevant 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.’[6] The Appellate Body however agreed 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’.[7] The Appellate Body further correctly pointed out that the panel relied on paragraph 5(a) of the Doha Declaration to merely confirm its earlier conclusion that Articles 7 and 8 of the TRIPS Agreement provide important context for the interpretation of Article 20 of the TRIPS Agreement.[8]

It however appears that the Appellate Body did not share the panel’s view that paragraph 5 of the Doha Declaration may be considered a subsequent agreement of WTO Members within the meaning of Article 31(3)(a) of the VCLT. Importantly, the Appellate Body did not directly address this question and it simply noted that ‘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.’[9] This may be because Australia also took the view that it is irrelevant whether or not the Doha Declaration constitutes a subsequent agreement since Article 8(1) of the TRIPS Agreement already ‘makes clear that Members may adopt measures necessary for the protection of public health.’[10] The approach of the Appellate Body in this regard therefore raises a cloud of uncertainty over the legal status of the Doha Declaration although it is clear that the Appellate Body agrees that paragraph 5(a) of the Declaration reflects the applicable rules of treaty interpretation.

(An extended critical analysis of this dispute is contained in my forthcoming book on international intellectual property law)

[1] Australia – Plain Packaging, para 7.2407. See also, ibid para 7.2411 (noting that, ‘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.’).

[2] Ibid para 7.2409.

[3] Ibid para 7.2410.

[4] Ibid para 7.2408.

[5] Australia – Plain Packaging, AB Report, para 6.656.

[6] Ibid.

[7] Ibid para 6.657.

[8] Ibid para 6.658.

[9] Ibid para 6.657.

[10] Ibid para 6.656.