4 October 2001
Trade-Related Aspects of
Intellectual Property Rights
Proposal by the African Group, Bangladesh, Barbados, Bolivia, Brazil, Cuba, Dominican Republic, Ecuador, Haiti, Honduras,
India, Indonesia, Jamaica, Pakistan, Paraguay, Philippines,
Peru, Sri Lanka, Thailand and Venezuela
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During the special discussion of the TRIPS Council on 19 September 2001, the following proposal was communicated to the Secretariat for circulation among Members of the Council by Zimbabwe on behalf of the above-mentioned delegations. When submitting the text, the delegations in question indicated that this was without prejudice to individual country positions and their right to submit additional proposals.
Ministerial declaration on the trips agreement and public health
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affirming that the protection and promotion of public health and nutrition is a fundamental obligation and prerogative of the State and that Members retain their sovereign power in this regard;
realizing that the inability of large segments of the population to obtain medicines and treatment at prices they can afford threatens the vital interest of States in protecting and promoting public welfare, preserving law and order, and maintaining social cohesion;
discharging the obligation to protect and promote the fundamental human rights to life and the enjoyment of the highest attainable standard of physical and mental health, including the prevention, treatment and control of epidemic, endemic, occupational and other diseases and the creation of conditions which would assure to all medical service and medical attention in the event of sickness, as affirmed in the International Covenant on Economic, Social and Cultural Rights;
cognizant of the concerns expressed by non-governmental organizations, public health advocates and the worldwide public regarding potential implications of the Agreement on Trade-Related Aspects of Intellectual Property Rights (the TRIPS Agreement) on the availability and affordability of needed medicines and other healthcare products;
concerned about the lack of adequate research and development on medicines for the prevention and treatment of diseases predominantly affecting people in developing and least-developed countries;
emphasizing that the protection of intellectual property rights, in particular patent protection, should encourage the development of new medicines and the international transfer of and access to technology to promote the development and maintenance of sustainable domestic manufacturing capacities for medicines and other healthcare products;
recognizing that in implementing domestic health policies, especially as regards the availability and affordability of medicines and other healthcare products, both the research-based and the generics pharmaceutical industries have important and complementary roles to perform, particularly in developing and least-developed countries;
stressing the importance of the participation of public health officials in discussions and decision-making on intellectual property rules that may have an effect on the availability of and access to healthcare products;
recalling the Preamble of the TRIPS Agreement, which, among others, prescribes that measures and procedures to enforce intellectual property rights should not themselves become barriers to legitimate trade and recognizes the special needs of the least-developed country Members in respect of maximum flexibility in the domestic implementation of laws and regulations in order to enable them to create a sound and viable technological base;
recalling further Article XI:2 of the Marrakesh Agreement Establishing the World Trade Organization and the Decision on Measures in Favour of Least-Developed Countries adopted on 15 December 1993;
reaffirming the General Council decision of 7-8 February 2000 (WT/GC/M/53) that the mandated review of the TRIPS Agreement, among others, should address the impact of the agreement on the trade and development prospects of developing countries;
acknowledging the vulnerability of developing and least-developed country Members to the imposition or the threat of imposition of sanctions and to the prospect of being deprived of incentives or other benefits, including those imposed or offered, as the case may be, beyond the framework of the WTO;
recognizing that challenges within the WTO dispute settlement system may in themselves inhibit or curtail the ability of Members to formulate and implement measures to protect and promote public health;
noting the ongoing examination by the Council for TRIPS on the scope and modalities for the possible application of subparagraphs 1(b) and 1(c) of Article XXIII of GATT 1994 to the settlement of disputes under the TRIPS Agreement;
recognizing that public health crises of unprecedented consequences, of which HIV/AIDS is a most dramatic example, afflict developing countries;
anticipating that drawing attention to and reaffirming the context of the TRIPS Agreement and certain provisions thereof as an initial concrete step will further encourage Members, particularly developing and least-developed country Members, towards considering every possible policy option for the protection and promotion of public health;
emphasizing the fundamental importance of the objectives and principles of the TRIPS Agreement.
Ministers declare that:
1. Nothing in the TRIPS Agreement shall prevent Members from taking measures to protect public health.
2. Each Member retains the right to establish its own policy and rules regarding the exhaustion of intellectual property rights.