Assessing and Answering Paragraph 6 of the Doha Declaration on the Trips Agreement and Public Health: The Case for Greater Flexibility and a Non-Justiciability Solution
Emory International Law Review, Vol. 17, pp. 743-780, 2003
38 Pages Posted: 1 Mar 2010
Date Written: 2003
Abstract
There is currently a damagingly polarized debate about the compulsory licensing of pharamceuticals for manufacture and export to poor, developing countries without autonomous manufacturing capacity. This issue is embodied in Paragraph 6 of th Doha Declaration on the TRIPS Agreement and public health. It is claimed this sort of compulsory licensing will greatly increase access to pharmaceuticals in developing countries, or greatly endanger the revenues of pharmaceutical companies. However, a careful reading of Paragraph 6, alongside some with global economic and epidemiological facts, indicates that both these predictions are probably exaggerated, and that the stakes of the Paragraph 6 debate are lower than its proponents or opponents imagine. This Article discusses the rationale for this argument; critiques the World Trade Organization's current draft text to address Paragraph 6 (the "Motta Text") as flawed and possibly illegal; suggests "salvage" amendments to the Motta Text; and recommends a superior alternative: a new proposal called non-justiciability. Non-justiciability would generally prohibit World trade Organization litigation against countires engaging in compulsory licensing when they do so consistent with Paragraph 6. Non-justiciability is legally feasible, probably politically acceptable to most countries, and would be able to bring closure to the Paragraph 6 debate in a manner that is acceptable to the competing interests at stake.
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