The panel in a WTO dispute regarding Australia and plain packaging of tobacco products reached the conclusion that 2001 Doha Declaration on the TRIPS Agreement and Public Health has the status of an agreement that has modified the interpretation of the TRIPS.
This is a brief note regarding a finding by a WTO panel that was circulated June 28, 2018 and adopted on August 28, 2018, regarding the status of the 2001 Doha Declaration on TRIPS and Public Health.
On June 28, 2018, the World Trade Organization (WTO) circulated the panels reports in the cases brought by Honduras, the Dominican Republic, Cuba and Indonesia in Australia – Plain Packaging (DS435, DS441, DS458 and DS467). This dispute examined the TRIPS-consistency of certain Australian laws and regulations that impose restrictions on trademarks, geographical indications, and other plain packaging requirements that regulate tobacco products and their packaging.
The reports circulated on June 2018 determined that the November 14, 2001 Doha Declaration on TRIPS and Public Health is “considered to constitute a ‘subsequent agreement’ of WTO Members within the meaning of Article 31(3)(a) of the Vienna Convention,” and also that the 2001 Declaration applies broadly to health issues, including in this case, to the control of tobacco use.
As has been reportedly widely, the panels found that the complainants failed to demonstrate that the plain packs regulations were inconsistent with Australia’s obligations under the TRIPS Agreement, an outcome that can be considered a victory for public health. The findings on the Doha Declaration were also important, and came while the UN was debating efforts to cite the Doha Declaration in a political declaration about the prevention and control of non-communicable diseases, like cancer or diabetes.
The full panel reports, in the form of a single document constituting four separate panel reports, is available here.
Honduras and the Dominican Republic filed appeals against the panels findings. These appeals will now be heard by three members of the permanent Appellate Body.
Paragraphs 7.2407 to 7.2411 of the reports examine the relation between the Doha Declaration and the TRIPS Agreement, concluding that the “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”. These paragraphs are excerpted below.
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7.2407. We note in this respect that the Doha Declaration, adopted by Ministers on 14 November 2001, 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”./fn 5009/
7.2408. While this statement was made in the specific context of a re-affirmation by Members of the flexibilities provided in the TRIPS Agreement in relation to measures taken for the protection of public health, we note that paragraph 5 of the Doha Declaration is formulated in general terms, inviting the interpreter of the TRIPS Agreement to read “each provision of the TRIPS Agreement” in the light of the object and purpose of the Agreement, as expressed in particular in its objectives and principles. As described above, Articles 7 and 8 have central relevance in establishing the objectives and principles that, according to the Doha Declaration, express the object and purpose of the TRIPS Agreement relevant to its interpretation.
7.2409. This paragraph of the Doha Declaration may, in our view, be considered to constitute a “subsequent agreement” of WTO Members within the meaning of Article 31(3)(a) of the Vienna Convention. As the Appellate Body has clarified: Based on the text of Article 31(3)(a) of the Vienna Convention, we consider that a decision adopted by Members may qualify as a “subsequent agreement between the parties” regarding the interpretation of a covered agreement or the application of its provisions if: (i) the decision is, in a temporal sense, adopted subsequent to the relevant covered agreement; and (ii) the terms and content of the decision express an agreement between Members on the interpretation or application of a provision of WTO law. /fn 5010/
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.
7.2411. 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.
Source: DS441: Reports of Panels. Australia — Certain Measures Concerning Trademarks, Geographical Indications and Other Plain Packaging Requirements Applicable to Tobacco Products and Packaging, WT/DS435/R, WT/DS441/R, WT/DS458/R, WT/DS467/R, 28 June 2018.