The Doha Declaration on the Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement and Public Health (the Doha Declaration) was negotiated and agreed upon by all Member countries of the World Trade Organization (WTO) because developing countries spoke out about concerns that the TRIPS Agreement does not allow adequate access to medicines needed to address their public health problems. This was a crisis that all acknowledged and for which they pledged to help developing countries find a solution. The Doha Declaration was incorporated into U.S. domestic law in the 2002 Bipartisan Trade Promotion Authority (TPA), 19 U.S.C. §3802(b)(4), legislation that has recently been the center of much debate with its expiration on 30 June 2007. Its expiration presents a much needed opportunity to assess whether or not the United States Trade Representative (USTR) has fully complied with TPA’s public health mandate in its bilateral trade negotiations.
This article concludes that the USTR has not complied with one of the TPA’s principal trade negotiating objectives for the United States regarding intellectual property which is “to respect the Declaration on the TRIPS Agreement and Public Health” in its negotiations of various free trade agreements. The Doha Declaration recognizes the right of developing countries to grant compulsory licenses for pharmaceutical products and to use flexibilities inherent in TRIPS to address health crises.4 Recently negotiated U.S. Free Trade Agreements (FTAs) with developing countries such as Chile, Singapore, Morocco, Panama, Peru and CAFTA-DR countries, as well as with South Korea, include TRIPS-plus provisions that can restrict the use of flexibilities built into TRIPS and the ability of developing countries to acquire medicines at affordable prices.5 The USTR’s trade negotiating policy to enhance and elevate IP protection has violated the TPA amendment establishing respect of the Doha Declaration as a principal objective of U.S. negotiations.